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KEEPING THEDEATH PENALTY ALIVE

Joseph M. Bernstein

THE LIMITS OFPROPORTIONALITY REVIEWIN DEATH PENALTY CASES

Joseph T. Walsh

THE DEATH PENALTY:Delaware's Experience

M. Jane BradyPaul R. Wallace

TOO YOUNG TO DIE?Evolving Standards

of Decency andthe Juvenile Death Penalty

in America

Professor Phyllis T. Bookspan

A CAPITAL DISCUSSION:Habeas Litigators Face Off on

the Death Penalty

David Curtis Glebe

A SURVIVOR'S JOURNEY

Kristin M. Froehlich, M.S.W.

LAW REVIEWS:Hollywood Capitalizeson Capital Punishment

Peter E. Hess & Maria F. Hess

DELAWARE LAWYER 3

Discussing criminal liability in hisbook, The Common Law, OliverWendell Holmes, Jr. concluded: "Allacts are indifferent perse." For example,the act of moving one's finger a few mil-limeters, in itself, has no moral or legalimport. But when the finger rests uponthe trigger of a loaded gun that pointstowards a human being, that surround-ing context may engender serious con-sequences. And if the outcome of thatotherwise-indifferent finger movementis homicide, moral and legal issues ofpunishment arise immediately, includingquestions regarding the ultimate penaltyof death.

Moral philosophers have debated theconcept of capital punishment for cen-turies, and profound disagreement con-tinues. Opponents label the practicebarbaric - unsuited to a developed civi-lization with a modern culture.Proponents view the death penalty as anecessity - to deter serious crime and toencourage personal responsibility.

The contributors to this special issueof Delaware Lawyer cogently addressseveral facets of this debate. JoeBernstein's thorough analysis of theevolution of Delaware statutory andcase law is a "must read" for any capitallitigator in the First State. Justice Walshcontributes the judicial perspective in aninsightful article about the problems ofproportionality review in death penaltycases. While Professor Bookspan'sthoughtful essay challenges the legiti-macy of the juvenile death penalty, thearticle co-authored by Jane Brady andPaul Wallace carefully responds to manycriticisms of capital punishment asadministered in Delaware.

On the personal side, KristinFroehlich's touching account of herexperiences as a family member of amurder victim articulates vividly anaspect of this issue that is often neglect-ed. As for my own article - which dis-cusses constitutional and strategic ques-tions relating to the post-conviction

stages of capital litigation - the facts,arguments, and even some of the dia-logue come directly from my federalhabeas caseload. Finally, Peter andMaria Hess appraise some treatments ofthe death penalty by the popular media.

Social enlightenment about difficultand far-reaching issues like capital pun-ishment may indeed develop slowly, butrational discussion as found in thesepages surely fuels its progress. AsHolmes might have observed, by criti-cally exploring the complex questions ofresponsibility and punishment, we mayself-consciously realize that our underly-ing sentiments about these issues arenot, after all, moral or legal in nature somuch as they are political.

And in a democratic society, politicaldebate should never cease.

David Curtis Glebe

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JOSEPH M. BERNSTEINwas admitted to theDelaware bar in1970, and presentlyhas an office inWilmington. Hispractice primarilyinvolves criminal

defense, and he has been lead counselin six capital murder cases that havegone to trial, as well as lead appellatecounsel in 12 capital murder cases.

PHYLLIS T. BOOKSPANis a professor of lawat the WidenerUniversity Schoolof Law. A memberof the faculty since1985, she teachesand writes in the

areas of criminal law and procedure,juvenile rights, and gender law. Priorto her admission to practice in theDistrict of Columbia and die Common-wealth of Pennsylvania, Bookspanearned her J.D. and LL.M. from theGeorgetown University Law Center.

M. JANE BRADYis the AttorneyGeneral of the Stateof Delaware. Priorto talcing office, sheserved as a DeputyAttorney General formore than 12 years,

handling several capital murder trials.She is Chair of the Criminal LawCommittee of the NationalAssociation of Attorneys General, andserves on the Board of Directors ofthe National District AttorneysAssociation and the ABA's CriminalJustice Section Council.

KRISTIN M. FROEHLICH,M.S.W.

is a WilmingtonX'iy ' SV^Vf&] resident and family'•* - J* - ~"W.*FZ therapist in

Delaware County,Pennsylvania. Acommitted Catholic,she is a member of

Delaware Citizens Opposed to the

(Continued- on page 7)

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DELAWARE LAWYER 5

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DELAWARE LAWYERA publication of Delaware Bar Foundation

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DELAWARE LAWYER is published by Delaware BarFoundation as part of its commitment to publishand distribute addresses, reports, treatises, andother literar)' works on legal subjects of generalinterest to Delaware judges, lawyers, and die com-munity at large. As it is one of die objectives ofDELAWARE LAWYER to be a forum for die freeexpression and interchange of ideas, die opinionsand positions stated in signed material are diose ofthe audiors and not, by die fact of publication, nec-essarily diose of Delaware Bar Foundation orDELAWARE LAWYER. All manuscripts are carefullyconsidered by die Board of Editors. Materialaccepted for publication becomes die property ofDelaware Bar Foundation. Contributing audiorsare requested and expected to disclose any financial,economic, or professional interests or affiliationsdiat may have influenced positions taken or advo-cated in die articles. That diey have done so is animplied representation by each audior.

Copyright 2003Delaware Bar Foundation

All rights reserved, ISSN 0735-6595

6 WINTER 2003-2004

(Continued from page 5)

Death Penalty, Murder Victims'Families for Reconciliation, and TheMoratorium Campaign. Froehlichhelped create a new support group forfamily survivors of murder, sponsoredby the Mental Health Association ofDelaware.

DAVID CURTIS GLEBEis an AssistantDistrict Attorney inthe FederalLitigation Unitof the PhiladelphiaDistrict Attorney'sOffice, and handles

capital habeas cases and appeals beforethe federal courts. He formerly servedas Chief Disciplinary Counsel ofDelaware. Prior to law school at theUniversity of Pennsylvania, Glebecompleted his doctoral dissertation onthe legal theories of Justice OliverWendell Holmes, Jr.

PETER E. HESS

P*™*̂ *™\1'-?•"-.' j is the managingV 1 , editor of this issue.

He is a Wilmingtonsolo practitionerwith a civil practicefocused on admiral-ty and maritime law.

He has twice been the issue editor ofDelaware Lawyer, and has served onits Board of Editors for five years.

MARIA F. HESS

V"2?^P%%V 1 i s a n Emmyi"Hf- '^^Sfe. i award-winning

freelance writer andvideo producer.She lives inWilmington withher husband Peter

and son Benjamin.

PAUL R. WALLACE

is a DeputyAttorney Generalin the CriminalDivision of the

/ j Delaware AttorneyGeneral's Office.He received his B.A.

in criminology, with minors inpsychology and sociology, from theUniversity of Maryland. He is agraduate of the Columbus School ofLaw of the Catholic University ofAmerica. Wallace has engaged indeath penalty litigation on behalf ofthe State at the trial and appellatelevels since 1989.

JOSEPH T. WALSH

was engaged in thepractice of law inWilmington from1958 to 1972,when he wasappointed to theSuperior Court

bench. In 1984, Justice Walsh wasappointed to the Court of Chancery,and in 1985, to the DelawareSupreme Court. He served on theDelaware Supreme Court until hisretirement in April of 2003. JusticeWalsh is presently Of Counsel atMcCarter & English, and an adjunctprofessor at the Widener UniversitySchool of Law. •

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loseph Is-!. Bernstein

DEATH PENALTY ALIVE

aving represented several capital defendants inmy career as a Delaware lawyer, I am quitefamiliar with Delaware's experience in fashion-ing death penalty legislation that must conformto ever-changing federal constitutional require-ments. In this article, I will explore this ongo-ing process, and my own experience with somekey issues currently facing capital litigators.

The "modern era" of death penalty legisla-tion in Delaware is best characterized as an

effort to enact capital statutes that could withstand constitu-tional challenges. In Funnan v. Georgia, 408 U.S. 238 (1972),the U.S. Supreme Court held that Georgia's statute violatedthe Eighth Amendment's prohibition against cruel and unusu-al punishments. Although the Court did not rule that capitalpunishment violated the Eighth Amendment per se, theDelaware Supreme Court was promptly asked to decidewhether the state's then-existing death penalty scheme wasconstitutional under Furman.

In 1972, Delaware statutes generally mandated the deadipenalty for capital offenses. A sentence of death could beavoided, however, if the jury, "at the time of rendering [itsguilty] verdict," recommended "mercy," thus allowing thecourt to impose a life sentence. See State v. Dickerson, 298 A.2d761, 762 (Del. 1973). In Dickerson, die Court held that dieMercy Statute was unconstitutional under Furman, but thatthe Murder Statute, mandating a deadi sentence, was consti-tutional. Id., at 764-767. Since invalidating the Mercy Statuteeliminated the possibility of life imprisonment, die Court heldthat the Murder Statute, standing alone, could only applyprospectively. Id., at 769. The Court also nullified all deathsentences imposed under die Murder Statute, directing diatthe affected defendants be resentenced to life. Id., at 771.

In response to Furman and Dickerson, die legislature enact-ed a new capital statute in 1974 (die "1974 Statute") that rede-fined first-degree murder, making deadi die mandatory pun-ishment. The constitutionality of die statute was upheld inState v. Sheppard, 331 A.2d 142 (Del. 1974). During die fol-lowing two years, nine cases resulted in deadi sentences underthe new law.

In 1976, the U.S. Supreme Court decided the landmarkcases of Woodson v. North Carolina, 428 U.S. 280 (1976),and Roberts v. Louisiana, 428 U.S. 325 (1976), holding that"mandatory death statutes" in North Carolina and Louisianaviolated Furman by failing to replace "arbitrary and wantonjury discretion with objective standards to guide . . . andmake rationally reviewable" the sentencing process.Woodson, 428 U.S. at 303. Thus informed, the DelawareSupreme Court struck down the 1974 Statute in State v.

Spence, 367 A.2d 983 (Del. 1976).The legislative response to Spence was a new statute (the

"1977 Statute"), modeled after Georgia's law, which had beenupheld in Gregg v. Georgia, 428 U.S. 153 (1976). The rulingin Gregg was based upon the view that Georgia sentencerswould be "given guidance regarding the factors about thecrime and the defendant that die State, representing organizedsociety, deems particularly relevant to the sentencing deci-sion." Id., 428 U.S. 191-192. In particular, the Gregg Courtapproved the bifurcated procedures for guilt-phase and penal-ty-phase determinations, and the requirement that the sen-tencer "find and identify at least one statutory aggravating fac-tor before it may impose a penalty of death." Id., 428 U.S. at206-207. Bodi features were incorporated into die 1977 Statute.

Notably, a deadi sentence could be imposed under the1977 Statute only upon the occurrence of two events. First,the jury had to find, unanimously and beyond a reasonabledoubt, at least one "aggravating circumstance," as defined bythe statute. Second, after weighing all aggravating factorsagainst any "mitigating circumstances," the jury had to decideunanimously diat the death sentence be imposed - a determi-nation that was binding on the court. If the jury was not unan-imous, the court was required to impose a life sentence, with-out the possibility of probation or parole. The following year,in State v. White, 395 A.2d 1082 (Del. 1978), the DelawareSupreme Court held the 1977 Statute to be constitutionalunder Gregg.

Deadi penalty procedures remained unchanged until 1991.Whedier intended or not, under the 1977 Statute die numberof deadi sentences decreased dramatically. In the thirteen yearsfollowing White, 55 capital cases went to a penalty hearing. Butdeadi sentences were returned in only seven cases. See Lawrie v.State, 643 A.2d 1336, 1352 (Del. 1994) (Appendix).

In October of 1991, four defendants were convicted ofrobbing an armored car and killing two guards. By a vote ofeleven to one, die jury failed to recommend sentences ofdeadi. See Robertson v. State, 630 A.2d 108, 1086-1087 (Del.1993). The legislative response was swift:

The new law [herein, die "1991 Statute"] was enactedunder a suspension of legislative rules on the day it wasintroduced. There was little debate in either house of theGeneral Assembly. The catalyst for these rapid develop-ments was the imposition of life sentences on defendantsby a New Casde County jury in a much publicized cap-ital murder case involving die execution style murders oftwo armored car guards.

State v. Cohen, 604 A.2d 846, 849 (Del. 1992).The 1991 Statute effected sweeping revisions. The center-

piece of the law changed the roles of judge and jury during

DELAWARE LAWYER 9

capital sentencing proceedings. Asnoted, under the 1977 Statute a deathsentence was imposed only upon thejury's unanimous decision. By contrast,the 1991 Statute required the jury tomake an "advisory" recommendation tothe judge, who then had final responsi-bility for determining the sentence. Id.In Cohen, the Court held that "designa-tion of the trial judge as the sentencingauthority does not violate the right to ajury trial," and observed that the "defen-dants concede that there is no federalright to the determination of punish-ment by a jury in a capital case." Id., at851.

This statutory reversal of the roles ofjudge and jury produced a significantincrease in the number of death sen-tences. After the adoption of the 1991Statute, 42 capital murder cases went toa penalty hearing, with death sentencesimposed in 19 cases. See Taylor v. State,822 A.2d 1052,1060-1064 (Del. 2003)(Appendix "A"). The holding in Cohenwent unchallenged until June 2000,when the U.S. Supreme Court decidedApprendi v. New Jersey, 530 U.S. 466(2000).

In a five-to-four ruling, the ApprendiCourt held that New Jersey's "hatecrime" law violated the SixthAmendment and the Due ProcessClause. Apprendi pled guilty to posses-sion of a firearm, which carried a penal-ty of five to ten years. But under the"hate crime" statute, an extended sen-tence was possible if the trial judgefound, by a preponderance of evidence,that the defendant "acted with a purposeto intimidate an individual or group ofindividuals because of race, color, gen-der, handicap, religion. . ." Id., at 486-487. The Apprendi Court stated:

It is unconstitutional for a legisla-ture to remove from the jury theassessment of facts that increasethe prescribed range of penalties towhich a criminal defendant isexposed. It is equally clear thatsuch facts must be established byproof beyond a reasonable doubt.

Id., 530 U.S. at 490. Whether therequired finding was deemed an "ele-ment" of the offense or a "sentencingfactor" did not matter. Rather, the onlyrelevant inquiry was - "does the requiredfinding expose the defendant to a greaterpunishment than that authorized by thejury's guilty verdict?" Id., 530 U.S. at494 (emphasis added).

The Apprendi decision renewed a

debate among the justices regarding thevalidity of a sentencing judge's findingsof "aggravating circumstances," understate capital sentencing schemes. Thedissenters argued that the majority'sposition "expose[d] the defendant to agreater punishment than that authorizedby the jury's guilty verdict," in directconflict with Walton v. Arizona, 497U.S. 639 (1990). In Walton, the Courtupheld Arizona's capital statute, reject-ing the defendant's argument that thefederal constitution required the jury,not the judge, to determine the exis-tence of statutory aggravating factors.See Apprendi, 530 U.S. at 538(O'Connor, J., dissenting) (observingthat majority opinion is "baffling to saythe least" in light of Walton), and 530U.S. at 522 (Thomas, J., concurring)(issue of Walton's viability remains"question for another day").

In Delaware, an Apprendi-based chal-lenge to the 1991 Statute was rejected inCapano v. State, 781 A.2d 556 (Del.2001). Referring to Walton, the Courtin Capano stated that, "a majority of the[Supreme] Court concluded that theholding in Apprendi did not disturb theline of decisions approving of deathpenalty statutes like that in Delaware."Id., 781 A.2dat671.

However, in June of 2002, Waltonwas expressly overruled in Ring v.Arizona, 536 U.S. 584 (2002), therebyupsetting the Capano Court's expecta-tion that Apprendi did not apply to cap-ital sentencing laws like the 1991Statute. In Ring, the Court held that theSixth Amendment required that a jurymust find, beyond a reasonable doubt,the statutory aggravating circumstancespermitting the death penalty, becausesuch factors operated as "the functionalequivalent of an element of a greateroffense." Id.,, 536 U.S. at 609.

Clearly, the constitutional require-ment in Ring that statutory aggravatingcircumstances be found by the juryrather than by the judge called intoquestion the continuing validity of theprescribed process under the 1991Statute. When Ring was issued, therewere eight cases pending in theDelaware Supreme Court with judge-imposed death sentences. There werealso several death penalty cases pendingtrial in the Superior Court.

The legislative response to Ring was arevision to the 1991 Statute, in July of2002. See 11 Del.C. § 4209. Theamendment provided that a death sen-

tence could not be imposed unless thejury found, unanimously and beyond areasonable doubt, the existence of a leastone statutory aggravating circumstance.The jury's role of giving "advisory opin-ions" - whether the aggravating factorsoutweighed the mitigating factors - wasleft intact. Also left intact was the judge'sfinal decisionmaking power to imposethe death penalty.

Despite Ring, the Delaware SupremeCourt has consistently declined to holdthe 1991 Statute unconstitutional. TheCourt has held, on a case-by-case basis,that Ring is satisfied by a jury's "findingduring the guilt phase of the underlyingfacts that are necessary to establish astatutory aggravator beyond a reason-able doubt." Reyes v. State, 819 A.2d305, 316 (Del. 2003). "When the verynature of a jury's guilty verdict simulta-neously establishes the statutory aggra-vating circumstance. . . that jury verdictauthorizes a maximum punishment ofdeath" in a manner that comports withRing. Id., at 317.

It is difficult to predict the impact ofDelaware's "Ring amendment" to the1991 Statute upon the number or fre-quency of death sentences yet to beimposed. Having participated in one ofthe first capital cases to go to a penaltyhearing under the "Ring amendment,"my professional view is that juries willlikely have a harder time reaching a un-animous verdict when the aggravatingfactor(s) themselves require additionalfindings of fact beyond the guilty verdict.

For example, in Capano, the juryunanimously found the defendant guiltyof murdering Anne Marie Fahey, yetsplit eleven to one on the only statutoryaggravator - whether the murder wasthe result of substantial planning andpremeditation. Id., 781 A.2d at 675.Similarly, in another capital case that Irecently tried, the jury convicted thedefendant of intentional murder, butalso failed to reach a unanimous verdict,as required by the "Ring amendment,"that the crime resulted from substantialplanning and premeditation, or that diemurder was committed for pecuniarygain. The defendant in that case wastherefore ineligible for a death sentence.

In July of 2003, the legislatureresponded to the Delaware SupremeCourt's interpretation of the jury's rolein providing die judge with an "advisoryopinion" whether aggravating factorsoutweighed mitigating circumstances.The previously prevailing notion was

10 WINTER 2003-2004

that the judge should accord "greatweight" to the jury's recommendation.See, e.g., Capano, 781 A.2d at 656,n.417. But that view was rejected by aSuperior Court judge in State v. Garden,792 A.2d 1025 (Del. Super. 2001){"Garden F).

In Garden I, the defendant was con-victed of two counts of capital murderfor several armed robberies, one ofwhich resulted in the death of a 36-yearold mother of four children. Id., 792A.2d at 1031-1032. The jury deter-mined that the aggravating factors didnot outweigh the mitigating circum-stances. Id., at 1028. But the judgerejected the jury's finding, concludingthat Garden should be sentenced todeath. In declining to give die jury'snon-binding recommendation "greatweight," the trial judge rejected thenotion that the jury represented the"conscience of the community." Id., at1029-1030.

The Delaware Supreme Court vacat-ed the death sentence, remanding thecase for further consideration of thepenalty. Garden v. State, 815 A.2d 327(Del. 2003) {"Garden IF). The Courtrecognized that the 1991 Statute waspatterned on Florida's law, as articulated

in Tedder v. State, 322 So.2d 908 (Fla.1975). The Court in Garden //wrote:

[GJiven the legislative linkagebetween the 1991 [S]tatute and ...the Tedder standard . . . We thushold that a trial judge must give ajury recommendation of life "greatweight" and may override such arecommendation only if the factssuggesting a sentence of death areso clear and convincing that virtual-ly no reasonable person could differ.

Garden II, 815 A.2d at 343.On remand, the trial judge again sen-

tenced Garden to death, and sharplycriticized the Delaware Supreme Court'sadoption of the Tedder standard. State v.Garden, 2003 Del. Super. LEXIS 165(Del. Super. 2003) {"Garden IIP).Indeed, the trial court openly invited thelegislature to overrule Garden II:

Where the Delaware SupremeCourt has incorrectly interpreted astatute, it falls to the legislature tocorrect judicial misinterpretationand clarify legislative intent. If theDelaware General Assemblybelieves that the Garden decisiondoes not express the will of thepeople, then it should adopt anamendment to the capital punish-

ment statute which rejects theGarden ruling. If it does not do so,then this Court will be satisfiedthat Garden is correct.

Garden III, 2003 Del. Super. LEXIS165, at *16-*17.

The legislative response was HouseBill 287, effective July 15, 2003. See 74Del. Laws, c. 174. The stated purpose ofthe statute was to "reverse the DelawareSupreme Court's judicial misinterpreta-tion of Delaware's death penalty statuteby repealing the Tedder standard."Section 4209(d)(l) of Title 11 nowprovides that "[T]he jury's recommen-dation concerning whether the aggra-vating circumstances found to exist out-weigh the mitigating circumstancesfound to exist shall be given such con-sideration as deemed appropriate by theCourt."

As the esteemed philosopher YogiBerra observed: "It is difficult to makepredictions, especially about the future."In the present context, the safest predic-tion is that the ongoing debate regard-ing the procedures by which the deathpenalty is implemented in Delaware willcontinue to generate more judicialdecisions and additional legislation.Stay tuned. •

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12 WINTER 2003-2004

loseph T. Walsh

THE LIMITS OFPROPORTIONALITY REVIE\AAIN DEATH PENALTY CASES

t is now an accepted precept of federalism that there arefew areas reserved exclusively to state jurisdiction incapital punishment adjudication. Over time, theSupreme Court of the United States, and to a lesserextent the federal courts of appeals, under the EighthAmendment or related due process or equal protectionstandards, have defined the limits for the imposition ofthe death penalty under state law. To the extent that thecurrent view assumes federal oversight insuring a mini-

mum of individual rights - with the states free toexperiment above the minimum - the question naturally aris-es as to what the states may do in their laboratories under theaegis of state constitutions or statutes regarding the formula-tion of non-federal standards.

Any discussion of the role of the states in the area of capi-tal punishment must begin with the premise that whethercapital punishment may be imposed for commission of anoffense is a matter, in the first instance, for a state to deter-mine. While the Supreme Court has restricted the impositionof the death penalty under due process standards, federal lawobviously has not mandated its use. For the most part, therole of federal law, particularly at the level of judicial review,has been one of supervision of capital convictions imposed instate courts.

It is notable that state institutions responsible for imple-menting state law, whether in the area of capital punishmentor otherwise, include more than just the judiciary. Legislators,who exercise the basic law-enacting function, will initiallydetermine whether the organic or substantive law of diestate authorizes the imposition of capital punishment.Furthermore, state legislatures, through statutory amend-ments, may limit or broaden the use of capital punishmentand define the scope of appellate review. In certain states, dieGovernor, whether acting alone or in concert with executiveagencies such as a board of pardons (or some analogousbody) may, dirough the power of clemency, affect the fre-quency of the imposition of capital punishment. The involve-ment of the non-judicial branches of state governments hasbeen most noticeable in the current debate over whether thedeath penalty is fairly imposed, as evidenced by recent mora-toriums on the death penalty in Illinois and Maryland. For themost part, however, state courts of last resort, exercising finalreview under state constitutional provisions, continue to bethe principal fora for testing the legality of death sentences.1

One area in which state law controls exclusively is that ofproportionality review, i.e., whether the deadi penalty in a

particular case is appropriate given the nature of the offenseand the character of the offender. Because the Supreme Courthas refused to recognize a basis for the requirement of pro-portionality in federal constitutional law, this inquiry hasbecome solely a state matter, almost by default.2

Proportionality Distinguished

At the outset, it is helpful to distinguish the types of pro-portionality review discussed in the case law and academiccommentary. From one perspective, the principle of propor-tionality may determine whether the imposition of the statu-torily authorized penalty for a designated offense is, per se,impermissible. When so applied, this general form of propor-tionality could conceivably extend beyond capital offenses,such that a long mandatory sentence for a trivial misde-meanor, for example, might well fall within its scope. Even ifthe focus is limited to examining whether the death penaltyitself is justified for offenses not resulting in death of the vic-tim, state courts rarely declare a statute unconstitutionalbecause it mandates a death sentence for such offenses.3

The principle of proportionality, when applied by statecourts in capital cases, arises most often in claims that thepunishment was not proportionate to the defendant's culpa-bility, when measured against similar crimes by other defen-dants. This type of proportionality analysis has becomeknown as "comparative" review, and diis article will discuss itsuse and effectiveness. The analysis may be conducted understate constitutional standards or, as in Delaware, where directreview of capital convictions is mandated by statute. At pre-sent, twenty of the thirty-eight death penalty states providefor some form of comparative proportionality review. Of localinterest, Delaware and New Jersey require such review, whilePennsylvania and Maryland do not.4

While proportionality review offers state appellate courts atheoretical non-federal mechanism for determining whetherthe death penalty has been arbitrarily imposed, courtsattempting to conduct comparative proportionality reviewhave struggled to devise a workable methodology. The prin-cipal argument for such review is diat it safeguards against thearbitrary and excessive imposition of the death penalty. It hasbeen contended that juries, sitting only in single cases, lackdie experience needed to evaluate die appropriateness ofimposing capital sentences. Appellate judges, however, canmeasure the result in a specific case against similar cases.Moreover, because they are removed from the emotional trialsetting, appellate judges can exercise this function in a moreobjective and systematic fashion.5

DELAWARE LAWYER 13

It is true that appellate judges, sittingen bane as required by statute, will fre-quently bring to the task of comparativeproportionality review a cross-section ofinformed judgment and experience. Thedifficulty in application lies not in theability of appellate judges to undertakesuch review, but in the formulation ofthe database of cases used for compari-son, and in the weighing of factors fordetermining similar cases and defen-dants. Thus, devising a proper universeof cases remains the primary, and mostchallenging, task in proportionalityreview. Should the comparison be limit-ed to those cases in which the defendantactually received the death sentence? Orshould it include cases in which thedefendant was charged with a capitaloffense but received life imprisonmentby reason of a jury verdict, or as occursmore often, because of a negotiatedguilty plea?

The Delaware ExperienceWhile the Delaware statute mandates

proportionality review as part of thedirect appeal of a death sentence, it doesso in general terms. The "automatic"review, set forth in 11 Del. C. §4209(g), calls for the Delaware SupremeCourt to determine:

Whether, considering the totalityof evidence in aggravation andmitigation . . . the death penaltywas either arbitrarily or capricious-ly imposed or recommended, ordisproportionate to the penaltyrecommended or imposed in simi-lar cases arising under this section.Notably, this provision requires the

Court to undertake a two-part analysis:(i) whether the death penalty was "arbi-trarily or capriciously" imposed or rec-ommended, and (ii) whether the penal-ty was "disproportionate" when com-pared to "similar cases." Since theseexercises implicate consideration of boththe circumstances of the offense and thecharacter of the offender, their applica-tion is directed to die same context. Butthe arbitrariness analysis is a stand-aloneform of review focusing upon the resultin a particular case, without compari-son to sentences in "similar" cases.Although the Delaware Supreme Courthas not applied the arbitrariness test, perse, to invalidate a sentence, it could beviewed as implicitly requiring a due pro-cess analysis directed to claims of plainerror in sentencing.

The comparative proportionalityreview required by Section 4209(g) has

been applied, however, in each casewhere the death penalty has beenimposed. Like other courts engaging insuch review, the Delaware SupremeCourt has looked to the "universe" ofcapital cases, i.e., where the defendant,convicted of murder in the first degree,proceeded to a death penalty hearing.The Court's task is to "look to the fac-tual background of the relevant cases todetermine the proportionality of thesentence imposed." Clark v. State, 672A.2d 1004, 1010 (Del. 1996).

The Delaware Supreme Court hasacknowledged that a "definitive com-

parison of the universe of cases is almostimpossible." Pennell v. State, 604 A.2d1368, 1376 (Del. 1992). The effort tocompile a reliable universe was furthercomplicated in 1991, when Delaware'scapital statute was amended to elimi-nate the need for jury unanimity in therecommendation of the death penalty.Despite the change, the Court has con-tinued to consider pre-1991 cases,while recognizing that cases governedby the 1991 amendment "are most per-suasive." Lawrie v. State, 634 A.2d1336, 1350 (Del. 1994). Even the"broadened" universe, however, doesnot provide an easily-applied test. Casesarising out of violent domestic con-frontations may fall into the same broadcategory, but even in such cases relevantdifferences arise - such as where thedefendant has stalked the victim asopposed to a killing that occurs in a sin-gle episode. Similarly, homicides occur-ring during another felony, such as rob-bery or rape, may be comparable, but a

death resulting from a burglary goneawry may present a different picture.

Even where the reviewing court isable to compile a pool of comparativecases, there remains the difficult task ofapplying the aggravating and mitigatingfactors which, in effect, render thedefendant more, or less, culpable thanthe defendants in the comparison pool.This exercise replicates, to a significantdegree, the weighing of aggravatingand mitigating circumstances at the triallevel, both by the jury in its recommen-dation and by the sentencing judge asthe final arbiter of the penalty.The New Jersey Experience

A troubling aspect of constructing auniverse of cases lies in accounting forthe element of prosecutorial discretion.The death penalty process begins withthe charging step - a factor entirelywithin the prosecutor's control.Influences upon the prosecutor's dis-cretion to charge, or not charge, mayvary, and may never be publicly dis-closed. The motivation for aggressivecharging of capital crimes is also opento serious question.6 Judicial efforts bycourts to include prosecutorial chargingdiscretion in the calculus have met resis-tance and, as the New Jersey experienceindicates, have created additional prob-lems for courts attempting effectiveproportionality review.

The Supreme Court of New Jerseyhas struggled to formulate a workableconstruct for proportionality reviewunder state law, which has been compli-cated by the need to define, and rede-fine, the universe of cases. The Court'sefforts resulted in the appointment of aSpecial Master to examine the currentmethodology underlying proportionali-ty review and to test its assumptions.7

While the Court later accepted certainrecommendations of the SpecialMaster, it rejected others.11

The New Jersey Supreme Court,sensitive to the need to expand its uni-verse of cases, determined that all casesthat were "death-eligible" should beincluded in its comparison pool. Theuniverse thus consisted not only of casesin which the death penalty was a sen-tencing option, but cases in which theoffense permitted a death sentence butwhere the state had not sought thedeath penalty or the defendants hadobtained non-capital pleas. Althoughthe resulting data provided a broadarray of "similar" cases, the Court ulti-mately determined that "the raw num-bers failed to account for the qualitative

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find comparison, but evaluation of thedefendant in terms of future dangerous-ness or rehabilitation will continue tobe highly subjective and speculative.

Hence, although proportionalityreview is one area of capital punishmentjurisprudence in which the states arefree to experiment, the results to dateare less than satisfactory as an assertionof state law standards under the newfederalism. Indeed, many believe thatthe entire concept of comparing death

penalty comparison create unique proD-lems. Because "death is different," andthe penalty irrevocable once imposed,there is little room for experimentation.Conclusion

In theory, comparative proportional-ity review permits state appellate courtsto exercise a unique function in capitalpunishment jurisprudence — preventingthe imposition of the death penalty incases where it is excessive when com-pared with other cases where it has been

Iplied or rejected. In practice, howev-| the use of comparative proportional-

review has been limited by thesence of a workable methodology for:ablishing a universe of cases and cri-"ia for effective comparison. To date,far as can be determined, no review-5 court has set aside a death sentencei the ground that it was dispropor-inatcly imposed, using comparativeindards. This does not mean that theercise has not been undertaken iniod faith, but does suggest that mucheds to be done if comparative pro-irtionality review at the state level is tomeaningful. ^

)OTNOTESSec James S. Liebman, ct al., "Capital

rrition: Error Rates in Capital Cases, 1973-95," 78 Tex. I. Rev. 1839, 1847 (2000)Meeting data showing that more than 40'cent of capital sentences reviewed by state;h courts were overturned on basis of "seri-s error").

See, CS-, I'ntley v. Harris, 465 U.S. 37 (1984)"oportionality review is not required exercisefederal oversight of capital sentencing).

Butsu State v. Gardner, 947 P.2d 630 (Ut.97) (statute authorizing death penalty forjravated assault by prisoner violated stateistitutional prohibition against cruel and

-"usual punishment); compare Cokcr v.\orjjia, 433 U.S. 584 (1977) (death penalty is•permissible for crime of rape).

\Scc 11 Del. C. § 4209(g) (requiring propor-"lulity review of capital sentences).

\Scc Penny J. White, "Can Lightning Strike'.'ice?: Obligation of State Courts After Pulley'{Harris," ~70 U. Colo. L. Rev. 813, 816;J99).

j See Herman J. Hoying, "A Positive First'•p: The Joint Legislative Audit and Review^mmission's Review of Virginia's System ot;pital Punishment," 14 Cap. Dcf. J. 349.002) (reporting results of study concluding,fer alia, lluu prosecutors sought death penal-Imorc aggressively in high density populationas rather than low or medium density areas),.vould seem that the. risk of disparate prose-orial discretion based on location of the"ensc would not be a significant factor inaller states such as Delaware, where the deci-n to seek the death penalty is, presumably,

1 in central authority at the state level.

7. State v. Loftin, 724 A.2d 129, 135 (N.J.1999).

8. In Re Proportionality Rev. Project, 735 A.2d528 (N.J. 1999).

9. Id., at 531.

10. N.J.S.A. 2C-U-3c, L. 1992 c. 5.

11. See Barry Latzer, "The Failure of Compara-tive Proportionality Review of Capital Cases(With Lessons From New Jersey)," 64 Alb. L.Rev. 1161 (2001) (comparative proportionalityreview is methodologically unsound and theo-retically incoherent).

DELAWARE LAWYER 15

It is true that appellate judges, sittiifen bane as required by statute, will fijquently bring to the task of comparati!proportionality review a eross-sectioninformed judgment and experience. Tdifficulty in application lies not in rability of appellate judges to undertasuch review, but in the formulationthe database of cases used for compason, and in the weighing of factors idetermining similar cases and defedants. Thus, devising a proper univciof cases remains the primary, and mechallenging, task in proportionalireview. Should the comparison be limed to those cases in which the defendaactually received the death sentence? <should it include cases in which tdefendant was charged with a caproffense but received life imprisonmeby reason of a jury verdict, or as occimore often, because of a negotiacguilty plea?The Delaware Experience

While the Delaware statute mandatproportionality review as part of tdirect appeal of a death sentence, it dcso in general terms. The "automatireview, set forth in 11 Del. C.4209(g), calls for the Delaware SuprerCourt to determine: i

Whether, considering the totality]of evidence in aggravation andimitigation . . . the death penalty]was either arbitrarily or capricious-1ly imposed or recommended, ordisproportionate to the penaltyrecommended or imposed in simi-lar cases arising under this section.Notably, this provision requires t

Court to undertake a two-part analys(i) whether the death penalty was "arltrarily or capriciously" imposed or r<ommended, and (ii) whether the penty was "disproportionate" when coipared to "similar cases." Since theexercises implicate consideration of bethe circumstances of the offense and tcharacter of die offender, their appliition is directed to the same context. Bthe arbitrariness analysis is a stand-aloneform of review focusing upon the resultin a particular case, without compari-son to sentences in "similar" cases.Although the Delaware Supreme Courthas not applied the arbitrariness test, perse, to invalidate a sentence, it could beviewed as implicitly requiring a due pro-cess analysis directed to claims of plainerror in sentencing.

The comparative proportionalityreview required by Section 4209(g) has

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1336, 1350 (Del. 1994). Even the"broadened" universe, however, doesnot provide an easily-applied test. Casesarising out of violent domestic con-frontations may fall into the same broadcategory, but even in such cases relevantdifferences arise - such as where thedefendant has stalked the victim asopposed to a killing that occurs in a sin-gle episode. Similarly, homicides occur-ring during another felony, such as rob-bery or rape, may be comparable, but a

included in its comparison pool. Theuniverse thus consisted not only of casesin which the death penalty was a sen-tencing option, but cases in which theoffense permitted a death sentence butwhere the state had not sought thedeath penalty or the defendants hadobtained non-capital pleas. Althoughthe resulting data provided a broadarray of "similar" cases, the Court ulti-mately determined that "the raw num-bers failed to account for the qualitative

14 WINTER 2003-2004

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find comparison, but evaluation of thedefendant in terms of future dangerous-ness or rehabilitation will continue tobe highly subjective and speculative.

Hence , al though proportionalityreview is one area of capital punishmentjurisprudence in which the states arefree to experiment, the results to dateare less than satisfactory as an assertionof state law standards under the newfederalism. Indeed, many believe thatthe entire concept of comparing death

penalty comparison create unique prob-lems. Because "death is different," andthe penalty irrevocable once imposed,there is little room for experimentation.Conclusion

In theory, comparative proportional-ity review permits state appellate courtsto exercise a unique function in capitalpunishment jurisprudence - preventingthe imposition of the death penalty incases where it is excessive when com-pared with other cases where it has been

ilied or rejected. In practice, howev-the use of comparative proportional-

review has been limited by theJscnce of a workable methodology for

:ablishing a universe of cases and cri-•ia for effective comparison. To date,far as can be determined, no review-

5 court has set aside a death sentenceL the ground that it was dispropor-mately imposed, using comparativetndards. This does not mean that theetxise has not been undertaken iniod faith, but does suggest that mucheds to be done if comparative pro-irtionality review at the state level is to

meaningful. •

iOTNOTES

Sec James S. Licbman, ct ai, "Capital:rition: Error Rates in Capital Cases, 1973-95," 78 Tex. L. Rev. 1839, 1847 (2000)Electing data showing that more than 40•cent of capital sentences reviewed by state;h courts were overturned on basis of "seri-s error").

Sec, e.g., Pulley v. Harris, 465 U.S. 37 (1984)•oportionality review is not required exercisefederal oversight of capital sentencing).

But sec State v. Gardner, 947 P.2d 630 (Ut.97) (statute authorizing death penalty forjravated assault by prisoner violated stateistitutional prohibition against cruel andusual punishment); compare Colier v.orgia, 433 U.S. 584 (1977) (death penalty ispermissible for crime of rape).

See 11 Del. C. § 4209(g) (requiring propor-mility review of capital sentences).

See Penny J. White, "Can Lightning Strike.'ice?: Obligation of State Courts After PulleyHarris," 70 U. Colo. L. Rev. 813, 816?99).

See Herman J. Hoying, "A Positive First:p: The Joint Legislative Audit and Reviewimmission's Review of Virginia's System ofpital Punishment," 14 Cap. Def. J. 349302) (reporting results of study concluding,'er alia, that prosecutors sought death penal-more aggressively in high density population:as rather than low or medium density areas).Would seem that the risk of disparate prose-torial discretion based on location of theense would not be a significant factor inallcr states such as Delaware, where the deci-n to seek the death penalty is, presumably,

vested in central authority at the state level.

7. State v. Loftin, 724 A.2d 129, 135 (N.J.1999).

8. In Re Proportionality Rev. Project, 735 A.2d528 (N.J. 1999).

9. Id., at 531.

10. N.J.S.A. 2C-ll-3e, L. 1992 c. 5.

11. See Barry Latzer, "The Failure of Compara-tive Proportionality Review of Capital Cases(With Lessons From New Jersey)," 64 Alb. L.Rev. 1161 (2001) (comparative proportionalityreview is methodologically unsound and theo-retically incoherent).

DELAWARE LAWYER 15

It is true that appellate judges,en bane as required by statute, will fij ~quently bring to the task of comparatifproportionality review a cross-section |informed judgment and experience. Tdifficulty in application lies not in tability of appellate judges to undertasuch review, but in the formulationthe database of cases used for compason, and in the weighing of factors fdetermining similar cases and defedants. Thus, devising a proper univetof cases remains the primary, and mechallenging, task in proportionalireview. Should the comparison be limed to those cases in which the defendaactually received the death sentence? (should it include cases in which Cdefendant was charged with a capi:offense but received life imprisonmeby reason of a jury verdict, or as occtmore often, because of a negotiaeguilty plea?The Delaware Experience

While the Delaware statute mandaiproportionality review as part ot tdirect appeal of a death sentence, it dcso in general terms. The "automatireview, set forth in 11 Del. C.;4209(g), calls for the Delaware SuprerCourt to determine: |

Whether, considering the totality]of evidence in aggravation andmitigation . . . the death penalty]was either arbitrarily or capricious- ily imposed or recommended, orjdisproportionate to the penalty jrecommended or imposed in simi-1lar cases arising under this section, fNotably, this provision requires t

Court to undertake a two-part analys(i) whether the death penalty was "arltrarily or capriciously" imposed or reommended, and (ii) whether the penty was "disproportionate" when coipared to "similar cases." Since theexercises implicate consideration of bethe circumstances of the offense and tcharacter of the offender, their appli<tion is directed to the same context. Bthe arbitrariness analysis is a stand-aloneform of review focusing upon the resultin a particular case, without compari-son to sentences in "similar" cases.Although the Delaware Supreme Courthas not applied the arbitrariness test, perse, to invalidate a sentence, it could beviewed as implicitly requiring a due pro-cess analysis directed to claims of plainerror in sentencing.

The comparative proportionalityreview required by Section 4209(g) has

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1336, 1350 (Del. 1994). Even the"broadened" universe, however, doesnot provide an easily-applied test. Casesarising out of violent domestic con-frontations may fall into the same broadcategory, but even in such cases relevantdifferences arise - such as where thedefendant has stalked the victim asopposed to a killing that occurs in a sin-gle episode. Similarly, homicides occur-ring during another felony, such as rob-bery or rape, may be comparable, but a

included in its comparison pool. Theuniverse thus consisted not only of casesin which the death penalty was a sen-tencing option, but cases in which theoffense permitted a death sentence butwhere the state had not sought thedeath penalty or the defendants hadobtained non-capital pleas. Althoughthe resulting data provided a broadarray of "similar" cases, the Court ulti-mately determined that "the raw num-bers failed to account for the qualitative

14 WINTER 2003-2004

nature of aggravating and mitigatingfactors," and the test was abandoned.''Further complicating New Jersey'seffort to provide meaningful compara-tive proportionality review was a 1992legislative enactment that limited theuniverse of cases to those in which thedeath penalty had been imposed.'"

The effort of the New JerseySupreme Court to improve comparativeproportionality review by enlarging thecomparison pool as broadly as possibleis laudable but, to date, has not yieldeda workable methodology. In theory,taking into account death penalty eligi-ble cases, which are not prosecuted assuch, seems to have merit. Unless, how-ever, one is prepared to construct asupplementary framework of the factorsinfluencing prosecutorial discretion incapital case charging, the universeremains incomplete.The Prospect for Meaningful Review

While the Delaware approach neces-sarily excludes certain death eligiblecases - which are not prosecuted assuch, and to that extent limit the pool -it has the advantage of a readily-definedgroup of cases, since the trial judgemust file a post-trial report outliningthe nature of the offense, as well as theaggravating and mitigating factors, ineach case submitted for a capital sen-tencing hearing. Moreover, because ofthe relatively small number of first-degree murder cases actually prosecut-ed, compared to the number in largerstates, Delaware offers the opportunityto compile a case pattern to which cer-tain criteria could be applied. At pre-sent, the Delaware universe permitsrough analysis based on such generalcategories as nature of the offense andrelationship between offender and vic-tim, but the empirical results remainundeveloped. Whether issues of com-parative disproportion in capital punish-ment can ever be subject to precise sta-tistical analysis is open to question.Factors such as the nature of the killingor the relationship of the actors mightfind comparison, but evaluation of thedefendant in terms of future dangerous-ness or rehabilitation will continue tobe highly subjective and speculative.

Hence, although proportionalityreview is one area of capital punishmentjurisprudence in which the states arefree to experiment, the results to dateare less than satisfactory as an assertionof state law standards under the newfederalism. Indeed, many believe thatthe entire concept of comparing death

sentences is beset with so many prob-lems that the exercise is incapable ofmeaningful application."

Comparative sentence analysis is nota new concept in the criminal justicesystem. The use of sentencing guide-lines at both the federal and state levelshas increased in recent years, reflectingefforts to develop norms or standardsagainst which individual sentences maybe compared. Such guidelines alsoattempt to apply a mix of sentencingprinciples and empirical results in aneffort to guide the sentencer, usually ajudge, in the determination of an

appropriate penalty. The difference,however, is that sentencing guidelinesprovide an ex ante analysis while com-parative proportionality review of deathsentences is an ex post exercise. The roleof the appellate court in death penaltyreview is not to determine an appropri-ate sentence in the first instance byapplying known standards, but to testfor the aberrational result. Thus, whilesentencing guidelines might offer a use-ful analog)', the many variables includedin any universe of cases used for deathpenalty comparison create unique prob-lems. Because "death is different," andthe penalty irrevocable once imposed,there is litde room for experimentation.Conclusion

In theory, comparative proportional-ity review permits state appellate courtsto exercise a unique function in capitalpunishment jurisprudence - preventingthe imposition of the death penalty incases where it is excessive when com-pared with other cases where it has been

applied or rejected. In practice, howev-er, the use of comparative proportional-ity review has been limited by theabsence of a workable methodology forestablishing a universe of cases and cri-teria for effective comparison. To date,as far as can be determined, no review-ing court has set aside a death sentenceon the ground that it was dispropor-tionately imposed, using comparativestandards. This does not mean that theexercise has not been undertaken ingood faith, but does suggest that muchneeds to be done if comparative pro-portionality review at the state level is tobe meaningful. •

FOOTNOTES

1. See James S. Licbman, ct ai, "CapitalAttrition: Error Rates in Capital Cases, 1973-1995," 78 Tex. L. Rev. 1839, 1847 (2000)(collecting data showing that more than 40percent of capital sentences reviewed by statehigh courts were overturned on basis of "seri-ous error").

2. See, e.g., Pulley v. Harris, 465 U.S. 37 (1984)(proportionality review is not required exercisein federal oversight of capital sentencing).

3. But see State v. Gardner, 947 P.2d 630 (Ut.1997) (statute authorizing death penalty foraggravated assault by prisoner violated stateconstitutional prohibition against cruel andunusual punishment); compare Cokcr v.Georgia, 433 U.S. 584 (1977) (death penalty isimpermissible for crime of rape).

4. See 11 Del. C. § 4209(g) (requiring propor-tionality review of capital sentences).

5. See Penny J. White, "Can Lightning StrikeTwice?: Obligation of State Courts After Pulleyv. Harris," 70 U. Colo. L. Rev. 813, 816(1999).

6. See Herman J. Hoying, "A Positive FirstStep: The Joint Legislative Audit and ReviewCommission's Review of Virginia's System ofCapital Punishment," 14 Cap. Dcf. ]. 349(2002) (reporting results of study concluding,inter alia, that prosecutors sought death penal-ty more aggressively in high density populationareas rather than low or medium density areas).It would seem that the risk of disparate prose-cutorial discretion based on location of theoffense would not be a significant factor insmaller states such as Delaware, where the deci-sion to seek the death penalty is, presumably,vested in central authority at the state level.

7. State v. Loftin, 724 A.2d 129, 135 (N.J.1999).

8. In Re Proportionality Rev. Project, 735 A.2d528 (N.J. 1999).

9. Id., at 531.

10. N.J.S.A. 2C-l l-3c, L. 1992 c. 5.

11. See Barry Latzer, "The Failure of Compara-tive Proportionality Review of Capital Cases(With Lessons From New Jersey)," 64 Alb. L.Rev. 1161 (2001) (comparative proportionalityreview is methodologically unsound and theo-retically incoherent).

DELAWARE LAWYER 15

Jane Brady Raul R. Wallace

Delaware's Experience

or all but four years of this country's history, capi-

Ntal punishment has been a part of the sentencingstructure of the vast majority of states, with theapproval of the nation's highest court.1 Consistent-ly, opinion polls evidence overwhelming support

for the death penalty in serious murder cases.2 Overtime, however, concerns about capital punishment havebeen raised, usually relating to: (1) the integrity of con-victions, (2) a perceived disproportionate application of

JL,\ the penalty to minority defendants, (3) the competen-cy of capital defense counsel, (4) claims that the death penaltydoes not deter serious crime, and (5) the costs of prosecution.

Although death penalty opponents typically voice disturb-ing questions, many times such concerns are demonstrablyinaccurate. In addition, there is often an imbalance in what iswritten about the death penalty, in part because many in themedia itself, including the major print media outlet inDelaware, consistently oppose the sanction.3

Nevertheless, die decision that capital punishment may bean appropriate sanction in some cases represents "an expres-sion of the community's belief that certain crimes are them-selves so grievous an affront to humanity that the only ade-quate response may be the penalty of death."4 Moreover, theproponents of capital punishment fully recognize its gravity,and the fact that it can result only from a horrible crime thattook the life of an innocent victim. Thus, proponents do notnecessarily advocate more executions, but rather, maintain thatthe option must be available in appropriate cases.

The concerns of death, penalty critics should not beignored, of course. Every jurisdiction should guard againstproblems that may affect public confidence in our justice pro-cess. But such problems are neither rampant nor universal, andmany jurisdictions take special care to address these concerns.Delaware has such a justice system.

This article is not meant to change the minds of thoseopposed to the death penalty on religious or moral grounds,nor to advocate that the use of capital punishment shouldincrease. This article seeks instead to identify the criticismsoften leveled by opponents of die death penalty, and to exam-ine Delaware's experience relating to those concerns. Such areview shows that despite the experience in other jurisdictions,the death penalty is fairly and effectively administered inDelaware.

"Actual Guilt" - The Integrity of Delaware ConvictionsDeath penalty opponents regularly claim that numerous

innocent people have been sentenced to death, only to beexonerated later. The Deadi Penalty Information Center(DPIC) Innocence List forms the basis for most of these

claims. The DPIC and those who rely upon it uncriticallyaccept that 102 innocent prisoners have been released fromdeath rows across the country.5 But a careful examinationdemonstrates convincingly that these numbers are not an accu-rate reflection of reality.6

The problems experienced in some jurisdictions have beenunfairly generalized by death penalty abolitionists. In Illinois,for instance, where a moratorium on executions was imposedin 2000 due to a series of reviews that permitted the release of13 death-row inmates, public confidence in that state's systemwas shattered. Attempts to restore confidence in Illinois' jus-tice system have included legislation regarding the videotapingof interrogations and confessions in murder cases, and newlaws allowing murder defendants greater access to DNA test-ing.7 Furthermore, die Illinois police community has beenurged to end resistance to initiatives calling for the decertifica-tion of officers who have engaged in dishonest conduct in theinvestigation of criminal cases.

Notably, these "innovations" in Illinois are practices thathave a long institutional history in Delaware. Consequendy,there is no evidence that any "actually innocent" person hasever been sentenced to death in this state. As the U.S.Supreme Court has held: "Actual innocence means factualinnocence, not mere legal insufficiency."s Accordingly, deter-mining "actual innocence" must include consideration of evi-dence of "actual guilt" diat was either excluded or unavailableat trial.9 Put simply, no Delaware prisoner convicted of capitalmurder has ever been shown to be "actually innocent," anddius wrongly sentenced to death.

There are several good reasons for Delaware's record ofexcellence in the investigation and prosecution of capital mur-der cases. It begins with the quality and professionalism of thestate's police departments. The criminal justice community inDelaware is relatively small and does not tolerate ineptitude,much less deceit, from its law enforcement officers. Delawarejuries are also of the highest quality - they will not convictwhen any reasonable doubt of guilt is present. Lasdy, Delawareprosecutors have long supported those investigative and trialpractices that foster die greatest degree of confidence in dieidentification and prosecution of criminal offenders.

Such a record has led to strong votes of confidence in theintegrity of our capital convictions. For example, althoughSenator Joseph R. Biden has recendy called for a nation-widedelay in federal executions pending a study of die fairness anduniformity of sentences, he made no such request of Delaware.As stated by his spokesperson, Margaret Aiken, Senator Biden"believes Delaware has a very good system, and he would liketo see Delaware's system replicated nationally.'""

16 WINTER 2003-2004

Racial Composition of Delaware'sDeath Row

Many opponents allege that capitalpunishment is applied in a discriminato-ry manner because the population ofmany states' death rows does not reflectthe racial composition of the generalpopulation. Because the death penalty isan individual sentence for individualacts, however, comparison betweenthese two statistics is flawed. Instead, theproper analysis must focus on whetherthere is disparate treatment on racialgrounds of those whose conduct meetthe objective criteria for application ofthe death penalty. This claim of racialdisparity has never even been crediblyadvanced in Delaware, much less sup-ported by evidence, even with the anal-ysis urged by death penalty opponents."

Based on the Year 2000 census,Delaware's population was 796,165,consisting of 74.6% Caucasian,19.2% African-American, 4.8% ofLatin American origin, 2.1%Asian, and 2.0% identified assome "other" race.12 Currently,of the 14 inmates sentenced todeath in Delaware, 71.4% areidentified as white and 28.6%are African-American." To theextent that there is a slightlygreater percentage of African-Americans on death row than inDelaware's general population,one must recognize that theracial makeup of the murderswhich led to these death sentences isconsistent with that of most homicidesand other violent crime - murder is usu-ally intra-racial.14 Consequently, torefrain from seeking the death penaltyfor the minority defendant who com-mits a capital murder in Delaware wouldalmost always mean that the slaying of aminority victim is treated less seriously.

Each case should be and is evaluatedon its own merits, without regard forthe race of the killer or the victim. Theresimply is no evidence that a minoritydefendant is more likely to receive thedeath penalty in Delaware than anequally culpable white murderer.

The Quality of Representation ofCapital Defendants

One of the most common criticismsraised by death penalty opponents findsits least support in Delaware. The quali-ty of representation that capital defen-dants receive in our state is outstanding.This is true whether capital defendantsare represented by private attorneys orappointed counsel.

A comparison of the ABA guidelinesfor defense counsel in capital cases15 withlongstanding Delaware practice speaksextremely well for the quality of repre-sentation provided in this state. Fromthe initial structure of defense teams toadvocacy in post-conviction litigation,Delaware has long met or exceeded theABA's guidelines.

This favorable history is clear inDelaware's death penalty jurisprudence.Only one reversal of a Delaware deathpenalty case - overturning the sentenceonly - has been based on a finding thatthe defendant received inadequate rep-resentation by his trial lawyer."" In thatcase the attorney was held not to haveadequately investigated or argued avail-able mitigating evidence at the penaltyphase of the trial. Significantly, the samedefendant, with a new lawyer and a newpenalty hearing, was again sentenced to

death. It is also noteworthy that the ini-tial attorney was privately-retained, andto date no publicly-appointed lawyer ina Delaware capital case has ever beenfound ineffective.

As stated by Judge Morton I.Greenberg of the Third Circuit Court ofAppeals:

[wjhatever may be true in otherareas of the country with respectto the defense of persons chargedin a capital case, defendants arecertainly getting first-rate defenses. . . in Delaware.'7

Capital Punishment as a DeterrentDeath penalty opponents wholly dis-

count its possible deterrent effects, dueto the claimed irrationality of murderitself as well as the perceived mental orpsychological limitations of the perpe-trators. Even proponents of die deathpenalty have eschewed the deterrenceargument to some degree. However,recent studies call into question the"accepted" hypothesis that executionsdo not deter further homicides.

While opponents have argued thatmurder rates actually rise in states withcapital punishment,'" research at EmoryUniversity and the University ofColorado has concluded that the deathpenalty has saved lives in capital jurisdic-tions that actually carry out executions.1''After reviewing thousands of capitalcases, each group concluded that theactual application of the death penaltycorrelated with a significant reductionin homicides, suggesting that capitalpunishment had a strong deterrenteffect.30

Delaware's experience regarding pos-sible deterrent effects is similar. The firstpost- Gregg execution in Delawareoccurred in 1992, and there have been13 since then. As of April of 2002, thestate had the nation's highest executionrate (0.166/10,000 pop.). During thatperiod, however, Delaware's murder

rate dropped approximately20%, and is currently about one-half the national average.

The debate on deterrenteffects will continue, but it isindisputable that the deathpenalty prevents future harmfrom the dangerous individualswho have already committedcapital crimes. Imprisonmentalone does not prevent escapes,nor the murder of guards, visi-tors, or other inmates. Killingsby escapees or inmates - both ofwhich Delaware has experienced

- speak to the extreme continuing dan-gerousness of certain criminals who can-not be deterred otherwise. Execution issometimes the only responsible way toprevent these offenders from futurekillings.The Costs Associated With DeathPenalty Cases

Although some studies purport toshow the excessive costs associated withcapital cases,31 estimates are widely diver-gent, and the findings inconsistent.Hence, in formulating policy regardingdie justice system's response to homi-cide, cost considerations should bequestioned carefully.

The decision to prosecute a capitalcase should not be based on cost. If aseven-year-old child is abducted, andfound nude and murdered, should weask how much it will cost to find thekiller before we decide if it is worth ourwhile to do so? Absolutely not! The deci-sion to prosecute must be based uponconsiderations of public safety, punish-ment, and deterrence - not cost. To

DELAWARE LAWYER 17

argue otherwise suggests the absurdnotion that we prosecute misdemeanorsvigorously but neglect major felonycases.

The reality is that the prosecution ofserious offenses, which involves forensicexaminations and other complex inves-tigative procedures, will be relativelyexpensive and time consuming. In capi-tal cases, special court provisions are uti-lized to assure the guilt of the offender,the integrity of the conviction on appeal,and the quality of the defender's repre-sentation." Undoubtedly, trials includ-ing these additional safeguards are moreexpensive, but any "cost analysis" basedon such factors will be flawed.

Death penalty opponents have mis-leadingly inflated estimates of costs todissuade legislatures and prosecutorsfrom pursuing capital cases.23 Seizingupon this illusory claim, some murderershave offered to "save taxpayers millionsof dollars" by pleading guilty inexchange for non-capital treatment."However, any attempt to balance thetrue costs in this context cannot focussolely upon the financial outlay associat-ed with the prosecution, but must alsoaccount for the inestimable value of thevictim's life to both family and society,the costs of persistent litigation by thoseserving life sentences, and the continuedsafety of the community when a provendangerous criminal is incarcerated.There is no formula that can adequatelyrender such an accounting.Conclusion

While on escape status, Billie Baileyrobbed a liquor store clerk at gunpoint,then forcibly entered the home ofGilbert and Clara Lambertson, aged 80and 73 years, where he shot them bothseveral times. As he fled theLambertsons' farmhouse, Bailey alsoattempted to shoot the arresting policeofficer.25

David Dawson escaped from theDelaware Correctional Center withthree others and stole a car. Separatingfrom his cohorts, Dawson entered thehome of Madeline Kisner, bound andgagged her, and viciously stabbed her 12times. Mrs. Kisner's young son foundher lifeless body upon his return fromschool.26

William Flamer and Andre Deputyillegally entered die house of Bayard andAlberta Smith, an elderly couple. Flamerstabbed Mr. Smith 79 times and Mrs.Smidi 66 times, ransacked their home,and robbed them.27

James A. Red Dog was convicted of

robbery, had previously escaped fromprison, and had committed two homi-cides in another state. While on federalrelease to Delaware, Red Dog murderedHugh Pennington in the home heshared with his mother, binding hishands and feet and repeatedly slashinghis throat.28

The realities of these crimes illustratewhy the Delaware public supports thedeath penalty. These were dangerouscriminals who presented a serious risk towhomever crossed their paths. Their vic-tims did not choose lifestyles that putthem in harm's way - many were brutal-ly murdered in their own homes. Thereis no guarantee that someone who ismerely incarcerated for murder will notkill again - indeed, two of the killersmentioned above murdered again aftertheir escapes.

The public will support a justice sys-tem that includes capital punishmentwhen it has confidence in the system'sintegrity, as well as its effectiveness insecuring convictions, incarcerating theguilty, and imposing sentences commen-surate with the crimes. We continue toachieve diose goals in Delaware. A care-fully-crafted statute, a professional andconscientious law enforcement commu-nity, competent counsel, fair and consis-tent administration without bias, andmeasured and appropriate sanctions allserve to provide Delaware with a systemof capital punishment that is effectiveand just. •

FOOTNOTES1. SeeFurman v. Georgia, 408 U.S. 153 (1972)(wide-ranging discretion under state deathpenalty statute is unconstitutional). FollowingFurman, many states adopted more narrowly-tailored capital statutes, which were upheld in1976. See Gregg v. Georgia, 428 U. S. 153(1976); Proffitt v. Florida, 428 U. S. 242(1976); and Junk v. Texas, 428 U. S. 262(1976). See also State v. White, 395 A.2d 1082(Del. 1978).2. A Gallup survey in May of 2003 revealedalmost three-quarters of those polled in favor ofcapital punishment. See www.clarkprosecutor.org/html/links/dplinks.htm for an excellenttracking of public opinion polling data.3. See Local Opinion, The News Journal, Jan.21,2003, p. A6.4. Gregg, 428 U.S. at 184.5. See "Innocence: Freed from Death Row" atwww.deathpenaltyinfo.org.6. See W. Campbell, "Critique of DPIC List(Innocence: Freed from Death Row)" (2002), atwww.prodeathpenalty.org.7. Eric Ferkenhoff, "Illinois Preparing BroadReforms on Capital Punishment," Boston Globe,June 15, 2003, p. A4.8. Bouslcy v. United States, 523 U.S. 614, 623(1998).

9. Schlup v. Dclo, 513 U.S. 298 (1995).10. Todd Eldred, "Stay of Execution Lifted,"Delaware State News, Nov. 16, 2000.11. Compare R. Paternoster and R. Brame, "AnEmpirical Analysis of Maryland's Death Sen-tencing System with Respect to the Influence ofRace and Legal Jurisdiction" (May 2003), atwww.urhome.umd.edu/ncwsdesk/pdt/c\ec.pdf.12. See http://quickfacts.census.gov/qfd/states/IOOOO.html.13. See www.state.de.us/correct/Data/DeathRow.htm.14. In all but two cases, the murderer and vic-tim were of the same race. In one of those two,the killer was black and the victim white. State v.Garden, 815 A.2d 327 (Del. 2003). In theother, a white man murdered an African-American victim. State v. Zcbroski, 1997 WL528287 (Del Super. 1997).15. See American Bar Association, "Guidelinesfor the Appointment and Performance ofDefense Counsel in Death Penalty Cases"(2003).16. State v. Wright, 653 A.2d 288 (Del. Super.1994).17. Transcript of oral argument in Hameen v.Delaware, No. 96-9007 (3d Cir. Feb. 22,2000), at p. 73.18. See "States With Death Penalty v. StatesWithout," at www.dcathpenaltyinfo.org.19. H. Dczhbakhsh, P. Rubin, and J. Sheperd,"Does Capital Punishment Have a DeterrentEffect? New Evidence from a Post-moratoriumPanel Data" (Jan. 2002), at www.service.emory.edu/ 'cozden/dezhbakhsh 01 Olpaper.pdf:H. Mocan and R. Gittings, "Pardons,Executions and Homicide" (Oct. 2001), athttp://econ.cudenver.edu/mocan/papers/deathpenaltylOO7.pdf.20. Both studies suggested that actual execu-tions in capital murder cases resulted in 5 to 18fewer homicides. The Colorado study also sug-gested that an increase of pardons was associat-ed with an increase in homicides.21. Compare P. Cook and D. Slawson, "TheCosts of Processing Murder Cases in NorthCarolina" (May 1993), at www.aas.duke.edu/people/faculty/cook/comnc.pdf: K. Buehler,"The Economics of Capital Punishment"(March 1998), at www.cybervillage.com/oes/penalty/htm; G. Bcatty, "The Next TimeSomeone Says That the Death Penalty CostsMore Than a Life in Prison, Show Them ThisArticle" (2001), at www.fedsoc.org/Publiea-tions/practiccgroiipnewsletters/criminallaw/cl010303.htm.

22. A minimum of two attorneys represent eachcapital defendant; there are also additional bail(11 Del.C. § 2103(b)) and jury selectionrequirements (11 Del.C. § 3301; Super Ct.Crim. R. 24), and a unique sentencing process(11 Del.C. § 4209(c)).23. See Beatty, supra; and D. Sharp, "DeathPenalty Paper" (Oct. 1997), at www.prodeath-penalty.com/DP.html.24. Liz Rocca, "Ridgway to Ask for PleaBargain" (July 21, 2003), atwww.komotv.com/news/story.asp?ID=26170.25. Bailey v. State, 503 A.2d 1210 (Del. 1984).26. Dawson v. State, 675 A.2d 1186 (Del.Super. 1996).27. Flamer v. State, 63 F.3d 710 (3d Cir. 1995).28. Red Dog v. State, 616 A.2d 290 (Del.1992).

18 WINTER 2003-2004

Professor Rhyllis T. Bookspan

TOO YOUNG TO DIE?Evolving Standards of Oecencv

the Juvenile Death Penalty in America

n addition to sub-average intellectual functioning, theymay have "diminished capacities to understand andprocess information, to communicate, to abstract frommistakes and learn from experience, to engage in logicalreasoning, to control impulses, and to understand thereactions of others."1 Given those deficiencies, theSupreme Court questioned whether the goals of retribu-tion and deterrence could be met by imposing deathsentences on mentally retarded persons convicted of

£&a& capital crimes. Unable to determine that the deathpenalty measurably contributed to either of these goals, theSupreme Court concluded that the execution of the mentallyretarded violated the Eighth Amendment's prohibition againstcruel and unusual punishments.

The Atkins Court just as easily could have been describingthe typical adolescent, particularly the profile of the biopsy-chosocial characteristics of juvenile offenders sentenced todeath in America.2 But in the decades since the Court man-dated, in Furman v. Georgia, 408 U.S. 238 (1972), that thedeath penalty must meet the dual goals of retribution anddeterrence, the Court has refused to rule that executing per-sons who were adolescents at the time of their crimes is uncon-stitutional. Indeed, the Court was presented with two oppor-tunities in the 2002-2003 term to revisit its holding inStanford v. Kentucky, 492 U.S. 361 (1989), that the executionof persons as young as 16 at the time of their crimes was per-missible. But despite the Court's holding in Atkins, suchefforts to re-examine Stanford failed by the slimmest majorityof justices.3

Thus, the-juvenile death penalty remains constitutional.Nevertheless, current scientific literature on adolescent braindevelopment, as well as trends in the application of the juveniledeath penalty, suggest that evolving standards of decencyrequire the abolition of capital punishment for juvenile offend-ers, in die same way that the Court abolished death sentencesfor mentally retarded offenders.New Research on Adolescent Brain DevelopmentUndermines the Juvenile Death Penalty

Retribution is based upon the idea that punishment is justi-fied when it is deserved. It is deserved when the wrongdoerfreely chooses to violate society's rules. By contrast, deterrenceis not based upon the wrongdoer, but rather uses the wrong-doer as a means to an end, viz., by punishing the wrongdoer,society sends a message to others to avoid similar bad acts. Inthe context of the juvenile death penalty, the problem lies inapplying these notions to a brain that is not fully formed.

Under English common law, a child under seven was con-clusively presumed incapable of forming the criminal intent tocommit a crime. From ages seven to fourteen, the presump-tion of incapacity was rebuttable. A child over fourteen wasdeemed capable of criminal intent. Common law rules ofinfancy became less significant with the development inAmerica of a juvenile court system focused on the concept ofrehabilitation.

In recent years, however, greater emphasis has been placedupon criminalizing juvenile conduct, as evidenced by the will-ingness to try juveniles as adults, and to commingle them withadult prison populations. Unfortunately, in the haste to "gettough on juvenile crime," insufficient attention has been paidto research in the field of brain development, and little if anycritical thought has been given to the historical presumptionthat the adolescent brain is fully formed at age fourteen.

Due to advances in magnetic resonance imaging (MRI)technology, researchers have been able to track brain develop-ment from childhood through late adolescence, and map dif-ferences between adult and adolescent brains. Recent studiesof the teenage brain by Jay Giedd, a neuroscientist with theNational Institute of Mental Health, and Paul Thompson, aneurologist with the UCLA School of Medicine, unexpected-ly indicated that a massive loss of brain tissue occurs in theadolescent years.4

Specifically, while die brain reaches about 95% of its fullsize by age six, the gray matter continues to grow Until age 11in girls and age 12 in boys. But in adolescence, or roughlyafter puberty, there is a selective pruning of gray matter asexcess connections are eliminated. The researchers found theloss from the frontal lobes or the prefrontal cortex at an annu-al rate of one to two percent, reporting that "[T]he loss waslike a wildfire, and you could see it in every teenager."5 Theseareas of the brain control impulses, subdue emotions, provideunderstanding of the consequences of behavior, and allowreasoned, logical and rational decision making.6

Other researchers have found that adolescents are prima-rily using the amygdala, a lower portion of their brains, fordiought processing while their prefrontal cortex is develop-ing. The amygdala is associated with emotional or "gutresponses."7 While their brains are still being built, teens lackthe same levels of organizational skill and decision-makingability as adults. These developmental studies suggest diatteenagers are not fully capable of thinking through the con-sequences of their conduct.8 In addition, scientists havefound that die corpus callosum - the cable of nerves that

DELAWARE LAWYER 19

connects the two sides of the brain, andwhich is involved in creativity and prob-lem solving - also appears to grow andchange significantly through adoles-cence.'' "The lack of a properly formedprefrontal cortex and corpus callosumindicates an impairment of the rationaldecision and thought making process . .. placing heavy reliance upon the emo-tional and gut response area."10

Anyone who lives with adolescentsmight readily agree that they suffer froman inability to regulate emotions, andoften act with little regard forconsequences. Yet, does this adequatelyexplain why some juveniles becomehomicidal? The problem isfurther complicated by dietrauma and shocking life ex-periences commonly foundin die backgrounds of juve-nile offenders.

For example, in a 1987study of 14 juvenile malesawaiting execution foroffenses committed be-tween the ages of 15 years,10 months and 17 years, 10months, researchers foundthat 12 of the 14 had beenbrutally physically abused,five had been sodomized byrelatives, and only two hadIQ scores above 90."Alcoholism, drug abuse,and psychiatric hospitaliza-tion were prevalent in theirparents' histories.12 Suchtraumas most often occur-red for these offenders during pre-puberty - in the pre-sculpting, brain-building period. The psychological con-sequences arising from exposure toviolence, abuse, neglect, and childhoodtrauma have generally been acknowl-edged, but "now it has been foundthat these experiences may causephysical changes in the brain andfundamentally alter brain develop-ment."13

While researchers previously believedthat the effects of trauma were mostpronounced during the developingyears, more current understanding ofthe adolescent brain's "pruning pro-cess" suggests that such early-occurringevents cause a state of fear-related acti-vation in the brain, resulting in hyper-vigilance, anxiety, and impulsivity.14 Theabuse essentially becomes an ingrainedpart of the teen's physical and biologi-cal makeup, and therefore determinesbehavior and responses.15

Does Capital Punishment ProvideJust Retribution and a ReasonableDeterrent?

While juveniles convicted of homi-cide may know the difference betweenright and wrong, scientific findingsabout the incomplete formation of theadolescent brain raise questions aboutwhether these children are freely choos-ing to violate society's rules. Suchresearch directly challenges the justifica-tion of the death penalty on retributivegrounds. Furthermore, the findings ofimpairment of rational decision making,the impulsive nature of adolescentactions, plus the physiological and emo-

A three-dimensional "map" showing portions of gray matter"pruned" from the brain between adolescence and adulthood. Thedark portions in the two boxes indicate those of the frontal lobe.The box on the far right indicates those of the part of the frontallobe called the prefrontal cortex, the part of the brain thatcontrols judgement. Image adapted from Nature Neuwscience.

tional impact of the traumas that mostjuvenile offenders have endured, all sug-gest no rational basis for deterrence as asentencing theory for capital punish-ment for juvenile offenders.

Fourteen years ago, the majority ofjustices in Stanford refused to credit thescientific studies then submitted to con-clude there was no reasonable groundfor the juvenile death penalty. Findingdie research unpersuasive, the Courtstated that "[i]f such evidence couldconclusively establish the entire lack ofdeterrent effect and moral responsibility,resort to the Cruel and UnusualPunishments Clause would be unneces-sary; the Equal Protection Clause of theFourteenth Amendment would invali-date these laws for lack of rationalbasis."'6 The explosion of scientific stud-ies in the ensuing years, which consis-tently finds that the brains of 16 and 17year olds are not fully formed, especiallyin die cognitive areas, strongly suggests

that the Court reconsider the constitu-tionality of executing persons under age18 at the time of their offenses.

Moreover, the same reasons that theAtkins Court articulated to concludethat both retribution and deterrencefailed to pass constitutional muster withrespect to mentally retarded defendantsshould apply as well to juvenile offend-ers. Retribution must be commensuratewith the offender's personal culpability.Just as a mentally impaired person can-not be held to the same moral standardas a non-impaired adult, the lesser cul-pability of an incomplete teenage brainprovides an insufficient warrant for the

sanction of death. That is,the cognitive and behav-ioral impairments thatmake mentally retardeddefendants less morally cul-pable also make teenagedefendants less morally cul-pable. As for deterrence,those same impairments,viz., diminished capacitiesto comprehend and processinformation, to learn fromexperience, to engage inlogical reasoning, or tocontrol impulses, make itless likely that teenagers canfully control their conduct.Executing Juveniles IsInconsistent WithEvolving Standards ofDecency

The petitioners in Stan-ford contended that the

death penalty did not serve the legiti-mate goals of penology under theEighth Amendment, but the SupremeCourt rejected that argument, anddefined its evaluative role more narrow-ly. The Court stated: "[t]he punishmentis either cruel and unusual [i.e. societyhas set its face against it) or it is not . . .[O]ur job is to identify the 'evolvingstandards of decency'; to determine, notwhat they should be, but what they are.. ."'7 A four-justice plurality found noclear signal that an evolved standard ofdecency rejected die practice of execut-ing 16- or 17-year-old offenders, andessentially left this decision to state leg-islators. IS Notably, although Stanfordwas understood as permitting the execu-tion of juvenile offenders as young as16, no state lowered its statutory mini-mum age from 17 or 18 to 16 afterStanford was decided in 1989.

In the ensuing years, 22 juvenileoffenders have been executed in the

20 WINTER 2003-2004

United States. Except for one - SeanSellers, executed in Oklahoma in 1999- all were 17 at the time of their crimes.All of the executions took place insouthern states, with more than half inTexas alone. (See chart.) Moreover,during 2001 and 2002, Texas was theonly jurisdiction to carry out juvenileexecutions.

By contrast, other states have movedin precisely the opposite direction. LastAugust, relying upon Atkins, theMissouri Supreme Court in Simmons v.Roper, 112 S.W.3d 397 (Mo. 2003),set aside a defendant's death sentence,concluding that the U.S. SupremeCourt would rule that juvenile execu-tions are barred by the Eighth andFourteenth Amendments. On June 18,2003, Governor Paul Patton ofKentucky commuted the death sen-tence of Kevin Stanford (now 39), theonly juvenile offender on Kentucky'sdeath row." In April of 2003, theNevada State Assembly voted to barexecutions of persons who commitcrimes before reaching 18 years of age.The law awaits passage by the NevadaSenate.2" Indiana raised its statutoryminimum age from 16 to 18, effectivein July of 2002.2I Montana did the samein 1997.22 Kansas did so in 1995.23

When New York returned to die deathpenalty by statute in 1991, a minimumage of 18 was set for the death penalty.The State of Washington accomplishedthis result by supreme court ruling inState v. Furnian, 858 P.2d 1092 (Wash.1993). Florida also raised its minimumage from 16 to 17 by court action, inBrennan v. State, 754 So.2d 1 (Fla.1999). Other states considering legisla-tion to raise the statutory minimum agefor the death penalty to 18 are Arizona,Arkansas, Delaware, Florida, Kentucky,Mississippi, Missouri, Pennsylvania,South Carolina, and Texas.Juvenile Executions ViolateInternational Human Rights Norms

In Atkins, Chief Justice Rehnquistwrote in dissent: "I fail to see . . . howthe views of other countries regardingthe punishment of their citizens pro-vide any support for the Court's ulti-mate determination."24 In a separatedissent, Justice Scalia stated, "[E]quallyirrelevant are the practices of the 'worldcommunity,' whose notions of justiceare (thankfully) not always those of ourpeople."25 While a minority of theSupreme Court may find the practicesof the world community irrelevant to

Juveniles Executed in the U.S.January 1, 1973 through the present

Name

Charles RumbaughJ. Terry RoachJay PinkertonDalton PrejeanJohnny GarrettCurtis HarrisFrederick LashleyRuben CantuChris BurgerJoseph CannonRobert CarterDwayne Allen WrightSean SellersDouglas Christopher ThomasSteven RoachGlen McGinnisShaka Sankofa (Gary Graham)Gerald MitchellNapoleon BeazleyT.J. JonesToronto PattersonScott Allen Hain

Date ofExecution

9/11/851/10/865/15/865/18/902/11/927/1/937/28/938/24/9312/7/934/22/985/18/9810/14/982/4/991/10/001/13/001/25/006/22/0010/22/015/28/028/8/028/28/024/3/03

Adapted from www.deathpenaltvinfo.or^

Place ofExecution

TexasS. CarolinaTexasLouisianaTexasTexasMissouriTexasGeorgiaTexasTexasVirginiaOklahoma

. VirginiaVirginiaTexasTexasTexasTexasTexasTexasOklahoma

Race

WhiteWhiteWhiteBlackWhiteBlackBlackLatinoWhiteWhiteBlackBlackWhiteWhiteWhiteBlackBlackBlackBlackBlackBlackWhite

Age atCrime

17171717171717171717171716171717171717171717

Age atExecution

28252430283129263333342429262327363325252432

American constitutional jurisprudence,international law in this critical areashould not be ignored.

In 2003, the United States is theonly Western nation, and one of onlytwo countries in the world, that impos-es capital punishment on juvenileoffenders. The other nation is Iran. Thepractice of juvenile execution isolatesthe United States from the world com-munity, and violates several internation-al human rights instruments.

For example, Article 6(5) of theInternational Covenant on Civil andPolitical Rights (ICCPR) states: "[T]hesentence of death shall not be imposedfor crimes committed by persons beloweighteen years of age." Although theU.S. ratified this treaty in 1992, prais-ing it as the most complete and author-itative articulation of internationalhuman rights law since World War II,the government nevertheless reservedthe right to impose capital punishmenton those below 18. The UnitedNations Human Rights Committeedeclared the American reservation"incompatible with the object and pur-pose" of the ICCPR.26 And at least onescholarly commentator has argued thatthe U.S. reservation is invalid, becausethe ICCPR prohibition against thedeath penalty for juvenile offenders isso well-established under internationallaw that it is non-derogable.27 If the

reservation is void as a violation of cus-tomary international law, then it may bethe Supreme Court's task to decidewhether the United States is fullybound by Article 6(5) of the ICCPR.

The evolving standards of decencymarking social progress require that lawnot remain static. In the 14 years sinceStanford v. Kentucky was decided, sci-entific research revealing incompleteadolescent brain formation has under-mined the legitimacy of the juveniledeath penalty. Similar to the nationalconsensus opposing the execution ofthe mentally retarded, public opinionhas developed against the execution ofjuveniles. Eighteen states have barredjuvenile executions completely; fivestates have raised or established theminimum age at 18; and the impositionof the juvenile death penalty is rarelyimposed in the majority of states. Thetime is ripe for the Supreme Court toreconsider its ruling on the execution ofjuvenile offenders. ^

FOOTNOTES1. Atkins v. Virginia, 536 U.S. 304, 318(2002).2. Dorothy Otnow Lewis, M.D., et.al.,"Neuropsychiatric, Psychoeducational, andFamily Characteristics of 14 JuvenilesCondemned to Death in the United States,"145 Am. J. Psychiatry 5, 584 May 1988.

(Continued on page 27)

DELAWARE LAWYER 21

David Curtis Glebe

Habeas LitigatorsFace Off on the Death Penalty

rior to their oral argument in the Third CircuitCourt of Appeals, two attorneys who litigatecapital habeas cases are having lunch. One of

them, the Defender, seeks a new sentencinghearing for his death-row client, alleging that con-

stitutional errors occurred during the penalty phase ofthe first-degree murder trial. The other lawyer, theProsecutor, contends that the inmate's death sentence isvalid.

"What truly amazes me," the Prosecutor remarksbefore biting into her turkey sandwich, "is how you can rep-resent that monster. Your client broke into that old lady'shouse, tied her up, and brutally raped her. Then he torturedher by sticking her own sewing needles into her feet, and final-ly slashed her with a kitchen knife until she died. Doesn't thatbother you?"

The Defender replies, "You don't understand my job. I'mnot in this appeal to represent a monster. I'm here to defendthe Constitution, and I'm very proud of that."

"Sounds to me like a rationalization - so you can sleep atnight," the Prosecutor rejoins. "What if that elderly womanhad been your own mother? Would you still be so concernedabout the rights of her killer?"

"Look," the Defender says, "I admit the crime was horren-dous, but we're not contesting guilt. What matters in thishabeas appeal is that the jury reached its deadi verdict in anunconstitutional way." Lowering his voice, the Defenderdelivers a more personal jab. "You prosecutors claim you'remore concerned about 'doing justice' than winning - butyou're implying that my client's murder conviction resolvesevery other issue, and negates his right to a fair sentence. Isn'tthat what you really think?"

"Of course not," die Prosecutor responds emphatically,"but how can you blame the jury for voting to execute him,given what he did? Your client deserves that sentence. Andthat's why 'doing justice' if to execute him."

"I honestly don't think so," the Defender muses as theProsecutor rolls her eyes. "I've been practicing law for 20years, and whenever I read the jury's sentencing instructionsin this case, even I get confused. How could those instructionsbe clear to a bunch of average people?"

"Because it was the standard sentencing charge for all cap-ital cases back then. Nothing confusing about it," theProsecutor answers. "The jury was instructed to weigh theaggravating and mitigating evidence. They did that. Theywere told that a death verdict could only result if they decid-ed, unanimously, that the scale tipped towards the aggravators.They did that. Case closed."

"No, case not closed," the Defender appeals. "If that 'stan-dard sentencing charge' was so unambiguous, then why was itrevised a few years after my client's trial? It's obvious that thejury could have misunderstood those instructions."

The Prosecutor sips her bottle of Dasani. "So what? The jurycould have misunderstood. What a red herring. Is it theoreti-cally possible that the jurors were confused? Sure, anything ispossible. But just because you claim the jury was possibly con-fused, you can't infer they were probably confused, much lessactually confused. It's possible I'm home in bed right now dream-ing. Claiming that something is possible means very little."

The Defender smiles. "But that's not what the federalcourts think, especially in capital cases."

"Maybe some courts do," the Prosecutor responds, "butthey're wrong. The Supreme Court has clarified that exactpoint — the mere possibility of juror confusion does wo? violatethe Constitution."1

"Let me put it another way," the Defender continues. "Youasked how I would feel if my client had murdered my mother.But turn that around - suppose your son were my client, con-victed of first-degree murder and sitting on death row."

"Make it my husband instead," the Prosecutor reflects. "Myson would never be in that situation. He would have to get offthe couch first."

"Fine," replies the Defender, "suppose your husband wereon death row, and there was a possibility that the jurors onlydecided on that penalty because they misunderstood their sen-tencing instructions. Wouldn't you want me to argue thatthere should be a high level of assurance that the jury wasn'tconfused? It's life or death, right?"

"I know," the Prosecutor groans, "in capital litigation thecourts routinely declare that 'death is different' - and thensome of them use that catchphrase to dissect these cases withsuch microscopic precision that finding error is almost guaran-teed.2 But die Constitution doesn't require perfect trials, evenin capital cases."

The Defender rejoins, "Well, maybe it should. Death sen-tences are different from other penalties. Shouldn't the courtstry to uncover every possible error? Isn't that what you wouldwant if your husband's habeas case were on appeal?"

"Sure, but only within the law. Like it or not, capital pun-ishment is the law in this state. If the courts required that everycapital defendant should receive a trial free of every possibleerror - so that we had to be certain the jury wasn't confused -diat would undermine the law itself. Courts that mandate cer-tainty or perfection in capital cases are really advancing a leg-islative agenda - trying to abolish the death penalty by makingit impossible to enforce."

22 WINTER 2003-2004

"So? Capital punishment is dehuman-izing and immoral, downright uncivi-lized."

"I honestly don't think so," theProsecutor muses as the Defender rollshis eyes. "If you assume that peopleknow that the death penalty is permittedfor first-degree murder under this state'slaw, then if a citizen chooses to remain inthis state, he tacitly agrees to be boundby that law. So if he chooses to commitmurder, there's nothing wrong withenforcing that law against him."

The Defender shakes his head, indi-cating, "No, no, no" but the Prosecutorcontinues, "In effect, the capital defen-dant authorizes his own death sentenceby choosing to live in a state that hassuch a law, and by choosing to commit ahorrendous murder. What is immoral oruncivilized about that?"

Before the Defender can respond, theProsecutor throws one more jab. "Youwant to abolish capital punishment? Tellyour clients to stop murdering people."

"But that's all just theory," the De-fender implores in a louder voice. "Realpeople don't act that way - supposedly'choosing' to do this or that. People areproducts of their genes and their envi-ronment. They have personality disor-ders, organic brain impairments, parentswho molest them, whatever. Even theSupreme Court endorses that view -look at the Atkins ruling last year. . .'"

"But," the Prosecutor interrupts,"Atkins only bars the execution of men-tally retarded persons, which doesn'tapply to the vast majority of capitaldefendants. And certainly not to yourclient. He was running his own land-scaping business. He's not mentallyimpaired."

"Don't be so sure," the Defendergrins. "We recently had him re-tested,and his IQ score is well within die rangefor mental retardation. In fact, we'llsoon be filing a new habeas petitionclaiming that under Atkins he can't beexecuted. So even if you win this appealon die jury instruction issue, Atkinsmeans we're starting over."

"When I first read Atkins, I knew thiswould happen," the Prosecutor remarksacidly, tapping her fingernails on dietable. "You put an IQ test in front of adeadi-row inmate and tell him: 'If youpass this test, you'll be executed, but if youfail this test, they won't execute you.' Whata shock when he fails the test."

The Defender swirls his coffee. "Well,even if die courts eventually reject ourAtkins claim, the litigation itself will takeyears. We'll file for discovery, we'll ask

for evidentiary hearings, and we'll takeevery possible appeal."

The Prosecutor sighs. "Any delay is avictory, right? The longer things dragout, the longer your client avoids theexecutioner's needle. Isn't there someethical rule against that?"

"Not for capital cases," snaps theDefender. "The ethics code doesn't bardelay when it's consistent with theclient's interests, and obviously my clienthas no interest in having the courtsprompdy uphold his death sentence."

"Which is typical of capital litiga-tion," vents the Prosecutor. "The wholeprocess has this bizarre, Alice inWonderland quality. Only the worst-of-the-worst murderers get the deathpenalty, but once diey're sentenced, thelaw seems to bend over backwards forthem - as if they've earned special treat-ment."

"Haven't you heard? Death is differ-ent," the Defender chants.

"Never heard that. But I have hearddiat some capital defenders will argue, orat least imply, diat the heinousness of themurder itself, especially where tortureoccurs, should be counted in the defen-dant's favor - as a mitigating factor - toshow how mentally deranged he was.Now that's truly upside-down logic."The Prosecutor's irritation is apparent.

"But nobody advanced diat claimhere," the Defender quicldy clarifies."And for the record, I find that particu-lar argument to be distasteful."

"Good - at least we agree on some-thing. I diink the jury would have beeninsulted if trial counsel argued that yourclient deserved extra leniency because hetortured that woman before killing her."

"Well, now that the Supreme Courthas issued Wiggins" says the Defender,"we don't need diat 'torture argument'anyway.4 Wiggins gives us loads ofammunition to attack counsel's effec-tiveness during the sentencing phase ofthese capital cases. Whatever case in mit-igation the defense attorney presented attrial, we'll use Wiggins to argue that abetter effort should have been made."

"Wiggins - what a headache," theProsecutor murmurs.

"You got diat right," die Defenderbeams, like die proud father of a new-born. "From now on, it's going to be allWiggins, baby.5 At die very least, ourWiggins claims will extend die post-con-viction process even further."

The Prosecutor spies her watch."We'd better leave. The Third Circuitdemands punctuality for oral arguments,aldiough I'm sure they will waive our

time limits. After all, this is a capitalcase."

"We could shorten the argument ifyou would simply concede," theDefender jokes. "Face it - even if wedon't overturn this death sentence onthe jury instruction issue, or on an Atkinsclaim, or on a Wiggins claim, or on someother ground, you'll probably retirebefore my client is actually executed."

Partially serious, the Defender whis-pers, "Why not drop tliis appeal andagree to a life sentence? He was drunkwhen he attacked that woman. Nevermeant to kill her. And he's a modelinmate now. Teaches Bible classes at theprison."

"So we should stop victimizing him,eh?" The Prosecutor stands up. "Youdidn't mention that executing himwon't bring the old woman back."

"Exactiy right," the Defender replies.Both lawyers exit the restaurant.

"Have you ever thought," the Prose-cutor asks, "that your tactics often seemto dehumanize your own client? Byclaiming that he shouldn't take responsi-bility for what he did, don't you implythat he's not really a human being, butrather, some kind of unthinking robot?"

"I guess that means you won't con-cede," says the Defender. "Good luckwith your argument anyway."

"Same to you," the Prosecutor replies,as diey head towards the courthouse.

Nine years later, the Prosecutorretired from practice, and handed overthe same capital case to a younger feder-al habeas lawyer. As of the summer of2013, die matter was still pending in thecourts. ^

FOOTNOTES

1. See Boyde v. California, 494 U.S. 370 (1990)(proper standard for evaluation of jury instruc-tions is whether confusion by entire jury wasreasonably likely); compare Mills v. Maryland,486 U.S. 387 (1988) (possibility of juror con-fusion in capital case was reversible error).2. See, e.g., Ford v. Waimvrigbt, 477 U.S. 399,411 (1986) ("death is different" because "exe-cution is the most irremediable and unfath-omable of penalties").

3. Atkins v. Virginia, 536 U.S. 304 (2002)(execution of mentally retarded criminals vio-lates Eighth Amendment prohibition against"cruel and unusual punishments"), abrogatingPenry v. Lynaugh, 492 U.S. 302 (1989) (exe-cuting mentally retarded criminals is not pro-hibited by Eighth Amendment).

4. Wiggins v. Smith, 123 S.Ct. 2527 (2003)(strategic decisions of trial counsel regardingpresentation of mitigating evidence prejudicedcapital defendant).

5. Direct quote from capital defense counsel,following the ruling in Wiggins.

DELAWARE LAWYER 23

Kristira IM. Froehlich.

A SURVIVOR'S JOURNEY

am a survivor of murder. In 1995, my youngest broth-er David, then 22, was murdered in a small town inConnecticut. Losing a loved one to murder is the worstthing I can imagine happening to anyone. However, thejourney following this loss has ultimately enriched me,unexpectedly adding meaning to my life. In this article,I would like to describe that journey, and the way it hasshaped and continues to shape my life and beliefs.

My brother shared an apartment with two friends,also in their early twenties. Their landlord had been

harassing them about the rent. He finally and brutally lulled allthree of them, along with two of their friends. Then he burneddown the house - his own house - to erase the evidence. Hewas caught and charged within a few days.

It was April 18, 1995, the day before the Oklahoma Citybombing. As I watched television with my family for news ofDavid's murder and die search for his killer, we were facedwith images of horror from Oklahoma. It felt like die wholeworld was getting killed.

When our funeral leaves were over, most of us left therefuge of family and returned to our lives. As the shock start-ed to wear off, my feelings overwhelmed me. Sadness anddespair were constant companions. I cried every day for a year.My trust in die world was shattered. I began to see evil every-where - literal, tangible black clouds of evil. I felt hopeless andpowerless against it.

After about six mondis, I was ready to begin the long jour-ney towards healing. I found a support group in Philadelphiacalled Families of Murder Victims. Not a group that anyonewould want to join. It took me several months of attendingbefore I could even begin to tell my story. Even longer beforeI felt like I wasn't sucking all the positive feeling out of dieroom every time I spoke. After a while, my feelings of isolationdecreased, and I was able to tell my story without sobbingthrough it.

Counseling helped witii my clinical depression, allowing meto take steps toward regaining hope and power. Battling thedemons of evil and despair was hard, and my therapist oftentold me that I looked exhausted at the end of each session.After several mondis, she suggested that I travel to the sitewhere David was killed and plant a flower, a symbolic gestureof hope and life and growth.

The idea struck fear into my heart. Go to that place whereevil was so powerful? I wasn't nearly strong enough. But aftertime and thought, the idea took root. My youngest sister,Meg, agreed to go with me. When we arrived on a sunny fallday, we found only a concrete slab where die house had been.The property was surrounded by trees covered with bright col-orful leaves. We planted a hyacinth. That experience was aturning point for me. I saw diat evil did not reside on that

property. I was able to take a positive step for life. I had somepower after all.

Meanwhile, the legal wheels turned slowly. After manymonths, we learned that the prosecution would pursue a deathverdict, but to my knowledge, none of the victims' families wasinvolved in diat decision. I know that several would haveopposed it. I know that some survivors want the death penal-ty, but I surely was not one of them, and it later struck me asstrange that the death penalty was sometimes defended asbeing "for the victims." But how does anyone know what sur-vivors want if they don't ask?

To tiieir credit, die Assistant District Attorney and Victim'sAssistance representative dici a great job of keeping my parentsand the families of the other victims informed. They providedinformation on the legal process, as well as counseling servic-es. Unfortunately, I didn't have access to the Victim'sAssistance representative because I lived outside ofConnecticut. I felt out of the loop, and without any say aboutthe proceedings. Struggling with my confusion and angerabout the legal process, I contacted the Assistant DistrictAttorney directly. She listened to my questions and answereddiem in detail. I don't remember everydiing she said, but Iremember diat I felt heard and respected.

By this time, I was attending a new support group inDelaware called Survivors of Accident and Murder. With dietrial increasingly on my mind, I began to pin my hopes on itto resolve some of my feelings. But there were so many delays,so much political game playing, so little progress. My friendLinda, who also attended die group, had witnessed die deatiiof a friend by a drunk driver and had participated in die sub-sequent trial. Because she was ordered not to discuss die casewitii anyone, she held in all her feelings and fears in the serv-ice of convicting her friend's killer. Years later, she was still hav-ing trouble coping witii her feelings. She explained that dielegal system was designed to address a law that has been bro-ken, but not to address broken hearts or shattered lives.

Linda's insight into the legal system was a revelation to me.Understanding that my needs were not die priorities of dielegal process liberated me from false hope. I was free to redi-rect my energies in more promising directions.

With this new understanding, I decided not to attend thetrial. Although my parents attended every single day, beingpresent at the trial wasn't right for me. Unlike my friendLinda, I was able to concentrate on grieving and healing with-out sacrificing myself to the demands of the legal system. Igained some control over my life when I allowed myself tomake diat important decision. I could honor David's life inother ways.

The legal system should respond to die needs of victims ina more respectful and helpful way. We deserve compassion,

24 WINTER 2003-2004

time to grieve, tolerance, and hope.Ultimately, we want to regain the feel-ings of trust, power, and control thatwere stolen from us. Victims and sur-vivors want accountability too - that amurderer accepts responsibility for whathe or she did. We want our families andcommunities to be safe, and we don'twant to sacrifice ourselves and our needsto make that happen.

There are other ways that the legalsystem can help survivors of violentcrimes. First of all, be honest with us. Donot pretend that the legal system or thedeath penalty can be the primary sourceof hope and healing. Survivors shouldnever be falsely persuaded into believingthat the outcome of a murder trial or thefate of a murderer will somehow dimin-ish the long process of grieving and heal-ing. Instead, those in the legal systemshould guide us to resources that canhelp us on our journey.

Second, become sensitive to yourown language. You may notice that I say"legal system," rather than "criminal jus-tice system." Given my personal experi-ence, the latter phrase feels false andinsincere to me because individuals use"justice" as if it means "right" or "fair,"when it really only means "according tolaw." How could any punishment,including the death penalty, be consid-ered doing "justice" without returningmy brother and his friends to their fami-lies? I have learned to leave justice toGod, God's time, God's way.

I also can't imagine a time when I willhave "closure," and I hope that societyitself is starting to understand theabsurdity of applying the word "closure"to anything to do with murder. What isclosed? The processes of grieving andhealing cannot be given time limits. WillI ever be finished grieving? Unlikely. WillI ever be finished healing? I hope not.

• Another demeaning term is "victim"- as applied to family members andfriends of murdered persons. Although"victim" is accurate in that we have suf-fered severe harm, it is not all we are.Being treated only as "victims" doomsus to remain in the state of powerlessnessthat is so painful to us, and it impedesour healing process. Although die term"victim" has been adopted in the politi-cal, legal, social, and economic arenas asa term by which we receive attention,respect, and practical assistance, I wouldprefer the term "survivor."

Another way the legal system can helpis by allowing survivors to speak forthemselves. The victim impact statement

at sentencing is one of the few times thatmy voice felt honored and relevant,becoming a powerful tool in the processof my healing. In researching this article,I found copies of my family's victimimpact statements, and our words amaz-ingly showed both vulnerability andstrength. Addressing David's killer inopen court, I declared: "We are strongerthan you and your evil. We are strongerin the love we feel, the memories wecarry, the friendships we share. We arestronger in the power we have to dogood in the world."

My younger sister, Rosemary, stoodat the podium with me. She too hadwritten a victim impact statement, butwas so shaken that we had a hard timegetting her even to enter the courtroom.She felt more frightened as the timecame to speak. But when my sister start-ed reading, a miracle happened. Hervoice rang out strong and clear. Shespoke her truth. The power of speakingour feelings publicly helped us feelacknowledged and respected. It helpedus regain some power and hope that wehad lost.

David's murderer was convicted andsentenced to life in prison witiiout thepossibility of parole. I was satisfied withthe penalty. And in a difficult twist, sev-eral months ago the killer took his ownlife in prison. Some survivors were re-lieved. Although I was relieved that hewould never harm another person, I alsofelt deep sadness. I thought of yet an-other life taken unnecessarily. I thought ofhis wife and daughter and the pain theymust endure by anorlier life cut short.

After the trial, I looked for other waysof healing and regaining power - bychoosing life over death, and good overevil. I went back to school for socialwork. I volunteered at my church.Ideally, criminals would be responsiblefor working to make amends for the evilthey bring into the world. But it is up tothe rest of us to work for good. I knowthat I have more power if I take actionfor positive change. It is another waythat I am free, and not at the mercy ofdie offender.

I started studying death penalty issuesmore closely. I attended lectures andread articles. I recognized that the deathpenalty did not fit with my values ofchoosing life over deadi and good overevil. It did exacdy die opposite. It chosedeatii, and in so doing, brought anotherquantity of evil into die world.

The fact is that society really doesn'tknow how to respond to a crime as

heinous as murder. Instead of admittingthe feelings of fear and powerlessness, wereact to the first rush of emotion: "If wecan crush the offender, we'll be safe." Thisis a foolish and weak response. Focusingon the death penalty disconnects usfrom our own grief and ignores thequestions of how we heal ourselves andour society.

Murder Victims' Families for Recon-ciliation - a national organization whosemembers oppose the death penalty -helped me find answers. Its membersinclude friends and family members ofboth homicide victims and state execu-tions. In June of 2001,1 attended a con-ference sponsored by MVFR, and metother family members of murder victims,as well as many who were connectedwith the perpetrators. I also met individ-uals who had been wrongfully chargedor convicted of murder, and later exon-erated. I felt a sense of belonging in everygroup. We were grieving. We were tryingto heal. We were trying to support andhonor our loved ones. We were trying tomake a difference in our own lives and insociety. I looked around and saw people- whom the legal system puts in an ad-versarial relationship - talking and shar-ing and laughing and crying together.Those people weren't "the other," theywere me, and I recall thinking, "Heavenmust be like this." Joining with all ofthose people made me feel much betterand stronger than the state-sanctioneddeath of David's killer would have.

Three years ago, I joined DelawareCitizens Opposed to the Death Penalty,an organization devoted to ending capi-tal punishment in Delaware. I startedlearning about the costs of the deatiipenalty: financial, emotional, social, andmoral. I learned about racial discrimina-tion and the execution of the innocent. Ilearned that Delaware had die highestrate of executions per capita of any state.Nowadays, whenever I read the Dela-ware motto, "It's good to be first," thatis what I think of. I do not feel proud.

Shortly after the MVFR conference, Ibegan to share my story in public. It wasanother opportunity to honor my expe-rience, to use my voice, to regain powerover my life and my future, and to influ-ence die future of society. As I thinkback on my healing journey so far, thetimes I felt most powerful were plantingthe flower, reading my victim impactstatement, joining with members ofMVFR, and sharing my story.

Each time I speak out, I take onemore step. ^

DELAWARE LAWYER 25

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LIQUOR MART

Opinion (Continued from page 28)

murder. The film compellingly portraysthe last minute legal maneuvers prior toexecution and their attendant emotion-al vicissitudes as hopes of reprieve ap-pear, are dashed and yet still seem toflicker ever so faindy.

Another recurrent dieme in the pan-theon of capital punishment movies isthe road one follows from law-abidingcitizen to condemned prisoner. TheCoen Brothers' quirky The- Man WhoWasn't There stars Billy Bob Thorntonas a small town barber whose higherambitions lead to murder, the unjustconviction of his wife for the killing, andultimately, through some bizarre twists,his downward spiral to ironic justice forhis own misdeeds. First achieving criti-cal acclaim and audience popularity withJames Cagney's unforgettable perform-ance in Public Enemy, this storyline tookdie protagonist in a sociopathic descentfrom petty criminal to, inevitably, thehangman's noose.

But die more enduring of this genreof death penalty film follows the leadcharacter from virginal innocence todeath row. It was first rendered effec-tively in A Place in the Sun, where alovelorn Montgomery Clift kills hisworking class fiance, Shelly Winters,after he has fallen hard for the wealthyand enticing Elizabedi Taylor. Fromheir apparent to the electric chair, it is asobering morality talk replete with eco-nomic caste undertones.

The British film Let Him Have It!tells a similar tale of a developmentallychallenged youth falling in among thewrong crowd, discovering self worththrough increasingly serious, yet minorcriminal acts, only to be branded thescapegoat for felony murder. The ambi-guity and inherent inequity of a deadisentence is underscored in die words ofdie film's tide: did our convicted pro-tagonist mean to incite his colleague tokill the night watchman, or was it sim-ply a plea to turn over die firearm asdemanded by die victim as he catchesdie burglars in die act?

Let Him Have It!, a little-known filmin the United States, effectively weavesseveral strands of cinematic death penal-ty themes togedier — the innocent con-demned, the inequitable punishment,and the irreversibility of execution —leaving die viewer questioning both thejustice and die morality of the state'simposition of the ultimate sanction. ^

26 WINTER 2003-2004

TOO YOUNG TO DIE?Evolving Standards of Decency and the Juvenile Deatli Penalty in America(Continued from page 21)

3. In re Stanford, 123 S.Ct. 472 (2002) (habeascorpus petition denied) (Stevens, Souter,Ginsberg, and Brcycr dissenting); Patterson v.Texas, 123 S.Ct. 24 (2002) (petition tor certio-rari and stay of" execution denied) (Stevens,Ginsberg, and Brcycr dissenting).4. Paul Thompson, M.D., "Brain ResearchShows 'A Child Is Not a Man,"' Neivsday, May23, 2001, p. A33.5. Id.6. "Brain Development, Culpability and theDeath Penalty," The International JusticeProject, at http://\vww.internationaliusticepro-jcct.org/pdfs/juvBrainDev.pdf.7. "Inside the Teenage Brain: Interview ofDeborah Yurgelun-Todd," Frontline, atI m p : / Avvvw.pbs.org Avgbh /pages /front-line /shows /teenbrain /interviews /todd. html.8. Id.9. "Brain Development," supra.10. Id.11. Otnow Lewis, supra, at 584, 587.12. Id.13. "Inside the Teenage Brain," supra.14. Bruce Perry, M.D., "The Impact of Abuseand Neglect on the Developing Brain," athttp://teacher.scholastic.com/professional/bruccperry/abuse neglect.htm6/22/2003.15. Id.16. 492 U.S. at 378.17. Id. (emphasis in original).

18. Id., at 381. Justice O'Connor, who cast thepivotal fifth vote, found the execution couldproceed because there was no national consen-sus forbidding the practice.

19. In October of 2002, the Supreme Courtrefused to consider Stanford's petition for writof habeas corpus.

20. "Adolescent Brain Development ArguesAgainst Teen Executions," Psychiatric News,May 18, 2003, p. 8.

21. Ind. Cod. Ann. 35-50-2-3(b)(l)(A) (2002).

22. Mont. Code Ann. Sec. 45-5-102 (1997).

23. Kan. Stat. Ann. 21-4622 (1995).

24. 536 U.S. at 325.

25. Id., at 348.

26. "Consideration of the reports submitted bystate parties under Article 40 of the Covenant,Comments of the Human Rights Committee,United States - Initial Report," \ 14, U.N. Doc.CCPR/C/79/Add.5O (1995).

27. Connie de la Vega, "Amici Curiae Urge theU.S. Supreme Court to Consider InternationalHuman Rights Law in Juvenile Death PenaltyCase," 42 Santa Clara L.R. 1041 (2002).

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DELAWARE LAWYER 27

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Peter E. Hess S Maria F. Hess

LAW REVIEWS:Hollywood Capitalizes on Capital Punishment

ne need not support or condemn capital punish-ment to enjoy the many films dealing with the

| death penalty. It's about adrenaline: death by exe-cution - society's ultimate retribution - can makeirresistible entertainment. Perhaps it's the long,

slow walk to the chair. Or those moments of intensetension while waiting for the chamber's phone to ring

before an irreversible switch is thrown. Whatever the appealthat the death penalty holds, its venerable place in cinematichistory is evidence of broad audience interest. Public execu-tions have, through the centuries, provided crowds with grue-some public spectacle. It is hardly surprising then, that crimeand punishment, murder and the ultimate sanction, death, arethe props of great film drama. Morbid undoubtedly, yet nev-ertheless absolutely riveting cinematic entertainment.

Not all films that feature die electric chair in a supportingrole are worth watching. Plot matters. We must be as interest-ed in the facts of the underlying legal case as we are in the starkeventuality of the noose. Dead Man Walking, for example,takes its audience through a heart-wrenching journey wherenun Susan Sarandon counsels condemned killer Sean Penn inhis quest for spiritual redemption before his lethal injection.But any such salvation is clouded by the unsalved pain of thevictims' families. Based on the real-life story of Sister MaryPrejean, Dead Man Walking suggests that execution isn't nec-essarily die end of the story: closure is ephemeral. When thenun has finally prevailed upon die condemned man die wordiof expressing true remorse, the viewer virtually stands in hisshoes. We can almost feel his nausea as the last meal is eaten.It is an artful film that can grow our empathy toward this crim-inal, even one guilty of the loathsome rape and murder forwhich he walks to his execution.

But it's not always about the prisoner. Monster's Ballexplores the impact that an execution has upon those closestto die condemned: the family left burdened with a killer's sor-

did legacy and the prison guards whose duty it is to carry outthe execution. Hallie Berry won an Oscar® for her portrayal ofthe embittered widow whose life, through a strange twist offate, intersects with Billy Bob Thornton, the guard captain incharge of meting out the sentence of death. Monster's Ballvividly illustrates the indelible repercussions of the death penal-ty, and the emotional baggage borne by all those associatedwith the administration of the ultimate sanction.

Kevin Spacey ably portrays another aspect of the deathpenalty: the potential for unredeemable error when the statetakes the life of one wrongly convicted of a capital crime. InThe Life of David Gale, Spacey plays an anti-capital punishmentcrusader who, in the seemingly cruelest of ironies, finds him-self condemned for the brutally depraved murder of his col-league. Seemingly resigned to his fate, he seeks only to under-score the irreversibility of execution. The film forcefully assertsthat there can never be adequate redress: the state's impositionof death is final.

The execution of an innocent is a proven formula in deathpenalty movies. In the fable-like The Green Mile, prison guardTom Hanks undergoes a philosophical metamorphosis as hecomes to realize, among other startling revelations, that hismost prominent death row inmate is not guilty of the murdersfor which he has been convicted. In a similar vein, in Someone'sGot to Shoot the Pictures, Roy Scheider plays a photographerhired by the condemned man to document his execution.Scheider grows from bored disinterest to zealous advocate forthe accused as it gradually dawns upon him that the manslated for electrocution has been framed for a homicide he didnot commit.

Susan Hayward won the first death penalty Oscar® in 1958's/ Want to Live! She plays a death row inmate whose brazen andconfrontational character makes her the fall gal for a brutal

(Continued on page 26)

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