Leading off this week is In re Sterling-Suarez from the First Circuit. The First Circuit previously granted mandamus to appoint counsel in this capital prosecution arising from the District of Puerto Rico. Sterling-Suarez comes again before that circuit to enforce that mandamus on the question of whether the prior writ guaranteed appointment of not only counsel but "learned counsel." Counsel for Sterlng-Suarez has never handled a capital case . Holding that the term "learned counsel" found in 18 U.S.C. 3005 as the law currently stands is ambiguous the Sterling-Suarez panel denies mandamus relief. The powerful dissent by Reagan appointee Judge Juan Torruella examines at length qualification of counsel and what experience counsel should meet in order to meet the qualifications of § 3005 is the reason that Sterling-Suarez makes the hot list.

In a spate of noncapital Supreme Court decisions the Court addressed sex offender registration statutes and "three strikes" laws. In Lockyer v. Andrade the Court holds two consecutive terms of 25 years to life in prison for a "third strike" conviction, was not an unreasonable application of the "clearly established" federal law, and equally as important "objectively unreasonable" for the purposes of habeas jurisprudence does not mean mere "clear error." In Ewing v. California a plurality holds that the Eighth Amendment does not prohibit the State of California from sentencing a repeat felon to a prison term of 25 years under the state's "three strikes" law. The Court in Smith v. Doe holds that the Alaska Sex Offender Registration Act is non-punitive, thus application of its registration requirement is not a retroactive punishment barred by the Ex Post Facto clause. Finally, in Connecticut Dep't of Pub. Safety v. Doe the Court upholds Connecticut's Megan law which requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants' names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices upheld.

Elsewhere, the Alabama Court of Criminal Appeals in Frazier v. Alabama orders a remand " "to conduct, if necessary, an evidentiary hearing, and to make written specific findings with regard to each of the claims presented," with special attention to be focused on ineffective assistance of counsel.

The Focus section this week is taken from Prof. Carol S. Steiker, "Things Fall Apart, but the Center Holds: The Supreme Court and the Death Penalty" a commentary December 2002 edition of the New York University Law Review.(C) Professor Steiker's premise is that the center of the Supreme Court is holding and that "neither judicial abolition of the death penalty nor abolition of the Supreme Court's Eighth Amendment jurisprudence currently commands a majority of the Court.. . . [T]he cautious and slowly reforming middle has held—and seems likely to hold—the reins of the Court’s capital jurisprudence for the foreseeable future."

Delma Banks, scheduled to be executed Wednesday night, will be the 300th person executed by that state, he also happens to have a very strong claim of actual innocence. As the Death Penalty Information Center notes: "Attorneys for Banks assert that, in addition to evidence of racial bias in this case and the failure of Banks' trial attorney to provide an adequate defense, the underlying case against their client depends upon the testimony of two unreliable witnesses who have since recanted their testimony. Banks is now seeking relief from the U.S. Supreme Court. The Honorable William S. Sessions, the former director of the FBI, has joined other distinguished former judges and prosecutors to file a brief in the Supreme Court supporting Banks because his claims "by their very nature raise issues that threaten the ability of the adversarial system to produce just results."

In other news missed in recent weeks, the January 2003 edition of the Cornell Law Review has published "Symposium, Victims and the Death Penalty: Inside and Outside the Courtroom" has published an edition dedicated, as the name suggests, to crime victims, the death penalty and how the legal process treats them. Also, in a new resource available on the net the Seventh and Eighth Circuits are now web-publishing briefs that appear before that court, as is the Florida Supreme Court; the briefs from the Eighth Circuit and the Florida Supreme Court are completely searchable and free. At capitaldefenseweekly.com the search engine is again working & the archives fully updated.

EXECUTION INFORMATION

The following person's have been executed since the last edition:

HOT LIST

In re Sterling-Suarez, --- F.3d --- (1st Cir 03/04/2003) The question whether an individual lawyer qualifies as learned counsel may depend on circumstances that vary markedly from case to case, and is not qualified for resolution by mandamus. From the majority:

What is perfectly clear is that the writ of mandamus previously issued by this court was concerned, simply and solely, with when learned counsel had to be appointed under the "promptly" language of the statute. True, our order said that learned counsel should be appointed forthwith, but an order is properly read in relation to the decision that supports it; and "[t]he reach of the mandate is generally limited to matters actually decided." 18B Wright, Miller & Cooper, Federal Courts § 4478.3 (2002). Questions as to who qualifies as learned counsel were not resolved in the proceeding leading up to the writ, and their resolution by the district court cannot violate our prior order. (2)

Whether Laws does qualify as learned counsel may well be open to debate. But unlike the meaning of the "promptly" requirement, the question as to the qualifications required of learned counsel is less than clear-cut and the question whether an individual lawyer qualifies as learned counsel may depend on circumstances that vary markedly from case to case. The lack of a clear answer, and the likelihood that no simple rule will dictate answers in other cases, make this a less obvious case for mandamus. In re Cargill, 66 F.3d 1256, 1259-60 (1st Cir. 1995); United States v. Horn, 29 F.3d 754, 769-770 (1st Cir. 1994).

Nothing in this decision prevents the filing of a new mandamus petition to challenge Laws' designation as learned counsel. But such a petition would have to begin with a showing that this issue meets the ordinary qualifications for resolution by mandamus. Certainly death penalty cases are different, but Congress has not provided for automatic interlocutory appeals in disputes as to the appointment of counsel.

The dissent:

Today the panel declines to enforce its mandamus ordering district court Judge Pérez-Giménez to appoint "learned counsel" pursuant to 18 U.S.C. § 3005 in the capital case of Quester Sterling-Suárez. The majority concludes that the district court did not violate our mandate, and, that even if the court's appointment of Joseph Laws was erroneous, this case is nevertheless inappropriate for mandamus. I respectfully disagree. The district court is simply not in compliance with our mandate of October 22, 2002. Therefore, mandamus is the proper tool to ensure compliance with our mandate.

The majority explains its hesitation to enforce its order in part by stating that the issue raised by the petition, namely, whether Joseph Laws can qualify as "learned counsel," is "less than clear-cut," and concludes that because the instant petition (unlike our original mandamus) affords no obvious answer, "this is a less obvious case for mandamus." Maj. Op. at 4. The majority then cites two cases, In re Cargill, 66 F.3d 1256, 1259-60 (1st Cir. 1995), and United States v. Horn, 29 F.3d 754, 769-70 (1st Cir. 1994), which set a very high bar for issuance of the writ. Id.

It is axiomatic that the remedy of mandamus is a drastic one and should be invoked only under extraordinary circumstances. Kerr v. United States District Court, 426 U.S. 394, 402 (1976). That said, we issued our original mandate due the extraordinary circumstances of a district court's refusal to give timely effect to a capital defendant's unambiguous statutory right to "learned counsel." Although I respect the majority's desire to avoid issuing the writ lightly, I disagree with the burden the majority places on the instant petition.

The relevant question is not whether the petition presents "a clear answer," or whether the issue raised in the instant petition would be better raised in a new mandamus petition; rather the sole question is whether the district court is in compliance with our original mandate.

"One of the less controversial functions of mandamus is to assure that a lower court complies with the spirit, as well as the letter of the mandate issued to that court by a higher court." In re Continental Securities Litigation, 985 F.2d 867, 869 (7th Cir. 1992); see also 18B Wright, Miller & Cooper, Federal Practice and Procedure § 4478.3 (2d ed. 2002) ("Enforcement [of a mandate] also may be accomplished by mandamus, and indeed this is one of the most nearly routine uses of this 'extraordinary writ.'"). Indeed, where a district court fails to comply with an order of a federal appellate court, the need for mandamus becomes more urgent and a court's reluctance to issue the writ is proportionally diminished. See Citibank, N.A. v. Fullam, 580 F.2d 82, 86-87 (1978) ("[Courts] have uniformly granted such writs in one situation where the district court has failed to adhere to an order of the court of appeals."). With respect, we need not consider whether the instant petition satisfies the requirements for mandamus articulated in cases such as Cargill and Horn, because those cases do not address the issue of mandamus in the context of compelling a lower court to comply with an appellate court's mandate. Because of the district court's failure to adhere to our mandate, the standard for mandamus here is far less onerous: if the district court has not heeded our mandate, the writ should issue.

The question then is whether the appointment of Joseph Laws -- an attorney who has never actually tried a capital case -- complies with our mandate that "learned counsel" be appointed forthwith.

The first time this case came before us, we issued a writ ordering Judge Pérez-Giménez to comply with the terms of 18 U.S.C. § 3005 because of a concern that the judge had adopted a policy of delaying the appointment of "learned counsel" until the Department of Justice notifies the court of its intent to seek the death penalty. In re Sterling-Suárez, 306 F.3d 1170 (1st Cir. 2002); see also United States v. Torres Gómez, 62 F.Supp.2d 402 (D.P.R. 1999) (Pérez-Giménez, J.)(delaying appointment of "learned counsel" and expressing frustration with expenses related to the appointment of "learned counsel"). Our mandate was simple: "Learned counsel shall be appointed forthwith." In re Sterling-Suárez, 306 F.3d at 1175. Although the district court's actions compelled us to explicitly construe the term "promptly," our failure to precisely spell out the meaning of each word of our six-word mandate does not mean that those words did not constitute "matters actually decided." Maj. Op. at 4. The term "learned" was not inserted idly, or for rhetorical effect. When this court ordered the appointment of "learned" counsel, I thought it meant what it said; that is, our mandate meant that the defendant had an immediate right of access to second counsel, and that at least one of his two attorneys should be skilled in the law applicable to death penalty cases.

Even if our mandate simply ordered the immediate appointment of "learned counsel" without pausing to define the term "learned," by consulting our opinion it should have been evident to the district court that we understood the term "learned" to mean "skilled or practiced in the law applicable to capital cases." The issue was undoubtedly before the Court: briefs by the petitioner and amicus curiae stressed the level of expertise that "learned counsel" could be expected to bring to Sterling-Suárez's defense, and repeatedly emphasized that because there has never been a capital case tried to completion in this district, "learned counsel" with actual death penalty experience would need to be imported. (3) Far more important is the fact that the text of our opinion clearly indicates that we considered the issue of what qualifies as "learnedness" under section 3005. See United States v. Cote, 51 F.3d 178, 182 (9th Cir. 1995) ("[T]he opinion delivered by [the] court at the time of rendering its decree may be consulted to ascertain what was intended by its mandate." (quoting In re Salford Fork & Tool Co., 160 U.S. 247, 256 (1895)).

First, our opinion made several references to our high expectations of "learned counsel." We noted that the purpose of § 3005 was that "learned counsel's" "special learning in the law 'applicable to capital cases' is likely to be especially useful in making and supporting arguments about mitigating and aggravating factors. . . made . . . when the jury is determining the sentence." In re Sterling-Suárez, 306 F.3d at 1173 (emphasis added). We noted that capital litigation was in many ways sui generis and listed by name several federal death penalty statutes about which counsel should be "learned." Specifically, we stated that "learned counsel" should be familiar with the complex death penalty procedure required by 18 U.S.C. § 3591 (2000). Additionally, we twice noted that learned counsel would provide expertise regarding issues involving mitigating and aggravating factors under 18 U.S.C. § 3592 (2000), issues which would likely be missed by otherwise competent attorneys who lacked experience in death penalty cases. Id.

Second, a necessary implication of our opinion is that "learned" signifies a substantial amount of experience in capital litigation. We stated that the term "promptly" could not be defined except as it refers to the event which was to promptly occur, namely, appointment of an attorney with experience in capital cases. As we stated: "the term 'promptly' is not self-defining; if there were no purpose served by appointing learned counsel . . . one could argue that the appointment should be made promptly when it mattered and not before." Id. at 1173 (emphasis added). That statement is an explicit finding that in order to define the term "promptly" it was necessary to recognize the statutory purpose for requiring the appointment of "learned counsel." Since the purpose served by appointing "learned counsel" is to provide capital defendants in federal court with an attorney experienced in death penalty law, the statute's purpose was undeniably a matter "actually decided" by this court. See Eichmann v. Fotomat Corp., 880 F.2d 149, 157 (9th Cir. 1989) (noting that the mandate doctrine "encompasses a court's explicit decisions as well as those issues decided by necessary implication").

Now, the petitioner challenges that the district court's actions contradict the purpose of 18 U.S.C. § 3005. If the issues of timing and purpose were so intertwined at the time of our opinion that neither in its own right was "self defining," I fail to understand the majority's present contention that we never considered this issue. In addition to our express acknowledgment that the timing question in § 3005 was inseparably linked to the statute's purpose, the quotations cited above provide ample evidence that the purpose of appointing "learned counsel" was an issue we "actually decided." Id.

Finally, to construe "learned in the law applicable to capital cases" in a manner that does not entail actual experience in a capital trial or appeal divests the terms "learned" and "applicable to capital cases" of any tangible meaning. Such an interpretation could not possibly have been our intent. Congress plainly had more than this in mind when it amended § 3005 to require counsel to be learned in the law "applicable to capital cases." (4) Its insertion of the phrase "applicable to capital cases" (referenced in our opinion) was manifestly intended to require that "learned counsel" have expertise relevant to capital litigation, and not merely to the practice of criminal law generally. See United States v. McCulluah, 76 F.3d 1087, 1098 (10th Cir. 1996) (finding that the amendment to § 3005 "did not merely 'clarify' the law but rather substantively changed it, creating a new requirement which previously had not existed"). At a minimum, "learned counsel" should possess "distinguished prior experience in the trial, appeal, or post-conviction review of federal death penalty cases." United States v. Miranda, 148 F.Supp.2d 292, 294 (S.D.N.Y. 2001) (quotation omitted). (5)

In the instant petition, the appointed "learned counsel," Joseph Laws, argues that because he has no experience trying capital cases, he cannot qualify as "learned counsel" under the statute. Further, Laws avers that by circumventing the purpose of our mandamus, namely, the timely appointment of counsel with death penalty experience, the district judge has not complied with our order that "learned counsel shall be appointed forthwith." In re Quester Sterling-Suárez, 306 F.3d at 1175.

I agree. Although the district court has purported to comply with our order by indeed appointing counsel "forthwith," Joseph Laws is not "learned" under any sound interpretation of our order, of section 3005, or of any other relevant "learned counsel" provision. The unique skills identified in our opinion are not the kind one might gain in the ordinary practice of federal criminal defense. As an American Bar Association study explained, the complex death penalty procedures articulated by § 3591, et seq., require that counsel "be knowledgeable about a complex body of constitutional law and unusual procedures that do not apply in other criminal cases." American Bar Association, Toward a More Just and Effective System of Review in State Death Penalty Cases, 40 Am. U. L. Rev. 1, 63 (1990). Such complexities are often missed by lawyers lacking considerable experience litigating capital cases. As a report from the Judicial Conference of the United States noted, even "seasoned federal criminal lawyers who lacked death penalty experience miss[] important issues." Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, at I.C.1.(May 1998) [hereinafter "Spencer Report"].

In sum, the multiple committees which have looked at this issue have concluded that "learned counsel" "should have distinguished prior experience in the trial, appeal, or post conviction review of federal death penalty cases." Guide to Judiciary Policies and Procedures, Vol. VII Ch. VI, § 6.01 B (emphasis added); Spencer Report at II.1. Because neither Laws nor anyone in his office has ever tried a death penalty case to completion, there is no basis for deviating from these recommendations in this case.

Laws' motion is not a new petition, and it does not raise a new issue; we are asked only to enforce our own order regarding actions by the judge to whom the order was directed. We are in a position to decide this matter because we can accept the facts stated in the district court's opinion as true, and all that remains is an issue of law, namely, whether Joseph Laws can qualify as "learned counsel." Although I believe that Laws is a skilled and accomplished Federal Public Defender, his current experience does not permit him to qualify as "learned counsel" in this or any other capital case. Therefore, I conclude that despite his appointment, the district court is not in compliance with our mandate.

It is both appropriate and routine for a court of appeals to issue mandamus where a district court "fails to comply with the spirit as well as the letter of the mandate issued . . . by a higher court." Continental Illinois, 985 F.2 at 869. Where our orders are issued to protect the rights of a defendant in a capital trial, we should be especially vigilant in seeing that they are followed. I respectfully dissent. (emphasis added)

SUPREME COURT

Lockyer v. Andrade, 538 US --- (03/05/2003) Court holds two consecutive terms of 25 years to life in prison for a "third strike" conviction, was not an unreasonable application of the "clearly established" federal law, and equally as important "objectively unreasonable" for the purposes of habeas jurisprudence does not mean mere "clear error."

The Ninth Circuit erred in ruling that the California Court of Appeal's decision was contrary to, or an unreasonable application of, this Court's clearly established law within the meaning of §2254(d)(1). Pp. 6-13.

(a) AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under §2254(d)(1)--whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law. In this case, this Court does not reach the question whether the state court erred, but focuses solely on whether habeas relief is barred by §2254(d)(1). Pp. 6-7.

(b) This Court must first decide what constitutes such "clearly established" law. Andrade claims that Rummel, Solem, and Harmelin clearly establish a principle that his sentence is so grossly disproportionate that it violated the Eighth Amendment. Under §2254(d)(1), "clearly established Federal law" is the governing legal principle or principles set forth by this Court at the time a state court renders its decision. The difficulty with Andrade's position is that the Court has not established a clear or consistent path for courts to follow in determining whether a particular sentence for a term of years can violate the Eighth Amendment. Indeed, the only "clearly established" law emerging from the Court's jurisprudence in this area is that a gross disproportionality principle applies to such sentences. Because the Court's cases lack clarity regarding what factors may indicate gross disproportionality, the principle's precise contours are unclear, applicable only in the "exceedingly rare" and "extreme" case. Harmelin, supra, at 1001 (Kennedy, J., concurring in part and concurring in judgment). Pp. 7-9.

(c) The California Court of Appeal's decision was not "contrary to, or involved an unreasonable application of," the clearly established gross disproportionality principle. First, a decision is contrary to clearly established precedent if the state court applied a rule that contradicts the governing law set forth in this Court's cases or confronts facts that are materially indistinguishable from a Court decision and nevertheless arrives at a different result. Williams v. Taylor, 529 U. S. 362, 405-406. Andrade's sentence implicates factors relevant in both Rummel and Solem. Because Harmelin and Solem specifically stated that they did not overrule Rummel, it was not contrary to this Court's clearly established law for the state court to turn to Rummel in deciding whether the sentence was grossly disproportionate. See Harmelin, supra, at 998 (Kennedy, J.). Also, the facts here fall in between Solem and Rummel but are not materially indistinguishable from either. Thus, the state court did not confront materially indistinguishable facts yet arrive at a different result. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle but unreasonably applies it to the facts of the prisoner's case. Williams v. Taylor, 529 U. S., at 413. The state court decision must be objectively unreasonable, not just incorrect or erroneous. Id., at 409, 410, 412. Here, the Ninth Circuit erred in defining "objectively unreasonable" to mean "clear error." While habeas relief can be based on an application of a governing legal principle to a set of facts different from those of the case in which the principle was announced, the governing legal principle here gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle--the "precise contours" of which are "unclear." Harmelin, supra, at 998 (Kennedy, J.). And it was not objectively unreasonable for the state court to conclude that these "contours" permitted an affirmance of Andrade's sentence. Cf., e.g., Riggs v. California, 525 U. S. 1114, 1115 (Stevens, J., dissenting from denial of certiorari). Pp. 9-13.

270 F. 3d 743, reversed.

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

Connecticut Dep't of Pub. Safety v. Doe, 538 US -- (03/05/03) Connecticut's Megan law which requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants' names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices upheld.

Among other things, Connecticut's "Megan's Law" requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants' names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices. Respondent, a convicted sex offender who is subject to the law, filed a 42 U. S. C. §1983 action on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Fourteenth Amendment's Due Process Clause. The District Court granted respondent summary judgment, certified a class of individuals subject to the law, and permanently enjoined the law's public disclosure provisions. The Second Circuit affirmed, concluding that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous."

Held: The Second Circuit's judgment must be reversed because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Paul v. Davis, 424 U. S. 693. But even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact--that he is not currently dangerous--that is not material under the statute. Cf., e.g., Wisconsin v. Constantineau, 400 U. S. 433. As the DPS Website explains, the law's requirements turn on an offender's conviction alone--a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Unless respondent can show that the substantive rule of law is defective (by conflicting with the Constitution), any hearing on current dangerousness is a bootless exercise. Respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, and maintains that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U. S. 110, 120 (plurality opinion). Such claims "must ultimately be analyzed" in terms of substantive due process. Id., at 121. Because the question is not properly before the Court, it expresses no opinion as to whether the State's law violates substantive due process principles. Pp. 4-6.

271 F. 3d 38, reversed.

Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion. Souter, J., filed a concurring opinion, in which Ginsburg, J., joined. Stevens, J. (see No. 01-729), filed an opinion concurring in the judgment.

Ewing v. California, 538 US -- (03/05/2003 - No. 01-6978) The Eighth Amendment does not prohibit the State of California from sentencing a repeat felon to a prison term of 25 years under the state's "three strikes" law, and appellant's sentence was not grossly disproportionate.

Under California's three strikes law, a defendant who is convicted of a felony and has previously been convicted of two or more serious or violent felonies must receive an indeterminate life imprisonment term. Such a defendant becomes eligible for parole on a date calculated by reference to a minimum term, which, in this case, is 25 years. While on parole, petitioner Ewing was convicted of felony grand theft for stealing three golf clubs, worth $399 apiece. As required by the three strikes law, the prosecutor formally alleged, and the trial court found, that Ewing had been convicted previously of four serious or violent felonies. In sentencing him to 25 years to life, the court refused to exercise its discretion to reduce the conviction to a misdemeanor--under a state law that permits certain offenses, known as "wobblers," to be classified as either misdemeanors or felonies--or to dismiss the allegations of some or all of his prior relevant convictions. The State Court of Appeal affirmed. Relying on Rummel v. Estelle, 445 U. S. 263, it rejected Ewing's claim that his sentence was grossly disproportionate under the Eighth Amendment and reasoned that enhanced sentences under the three strikes law served the State's legitimate goal of deterring and incapacitating repeat offenders. The State Supreme Court denied review.

Held: The judgment is affirmed.

Affirmed.

Justice O'Connor, joined by The Chief Justice and Justice Kennedy, concluded that Ewing's sentence is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments. Pp. 8-18.

(a) The Eighth Amendment has a "narrow proportionality principle" that "applies to noncapital sentences." Harmelin v. Michigan, 501 U. S. 957, 996-997 (Kennedy, J., concurring in part and concurring in judgment). The Amendment's application in this context is guided by the principles distilled in Justice Kennedy's concurrence in Harmelin: "[T]he primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" inform the final principle that the "Eighth Amendment does not require strict proportionality between crime and sentence [but] forbids only extreme sentences that are 'grossly disproportionate' to the crime." Id., at 1001. Pp. 8-11.

(b) State legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety. Though these laws are relatively new, this Court has a longstanding tradition of deferring to state legislatures in making and implementing such important policy decisions. The Constitution "does not mandate adoption of any one penological theory," id., at 999, and nothing in the Eighth Amendment prohibits California from choosing to incapacitate criminals who have already been convicted of at least one serious or violent crime. Recidivism has long been recognized as a legitimate basis for increased punishment and is a serious public safety concern in California and the Nation. Any criticism of the law is appropriately directed at the legislature, which is primarily responsible for making the policy choices underlying any criminal sentencing scheme. Pp. 11-15.

(c) In examining Ewing's claim that his sentence is grossly disproportionate, the gravity of the offense must be compared to the harshness of the penalty. Even standing alone, his grand theft should not be taken lightly. The California Supreme Court has noted that crime's seriousness in the context of proportionality review; that it is a "wobbler" is of no moment, for it remains a felony unless the trial court imposes a misdemeanor sentence. The trial judge justifiably exercised her discretion not to extend lenient treatment given Ewing's long criminal history. In weighing the offense's gravity, both his current felony and his long history of felony recidivism must be placed on the scales. Any other approach would not accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and amply supported by his own long, serious criminal record. He has been convicted of numerous offenses, served nine separate prison terms, and committed most of his crimes while on probation or parole. His prior strikes were serious felonies including robbery and residential burglary. Though long, his current sentence reflects a rational legislative judgment that is entitled to deference. Pp. 15-18.

Justice Scalia agreed that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, but on the ground that that prohibition was aimed at excluding only certain modes of punishment. This case demonstrates why a proportionality principle cannot be intelligently applied, and why Solem v. Helm, 463 U. S. 277, should not be given stare decisis effect. Pp. 1-2.

Justice Thomas concluded that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments because the Amendment contains no proportionality principle. P. 1.

O'Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Kennedy, J., joined. Scalia, J., and Thomas, J., filed opinions concurring in the judgment. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

Smith v. Doe, 538 US --- (03/05/2003) The Alaska Sex Offender Registration Act is non-punitive, thus application of its registration requirement is not retroactive punishment and does not violate the Ex Post Facto clause.

Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4-18.

(a) The determinative question is whether the legislature meant to establish "civil proceedings." Kansas v. Hendricks, 521 U. S. 346, 361. If the intention was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, the Court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. E.g., ibid. Because the Court ordinarily defers to the legislature's stated intent, id., at 361, only the clearest proof will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. See, e.g., ibid. Pp. 4-5.

(b) The Alaska Legislature's intent was to create a civil, nonpunitive regime. The Court first considers the statute's text and structure, Flemming v. Nestor, 363 U. S. 603, 617, asking whether the legislature indicated either expressly or impliedly a preference for one label or the other, Hudson v. United States, 522 U. S. 93, 99. Here, the statutory text states the legislature's finding that sex offenders pose a high risk of reoffending, identifies protecting the public from sex offenders as the law's primary interest, and declares that release of certain information about sex offenders to public agencies and the public will assist in protecting the public safety. This Court has already determined that an imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate nonpunitive governmental objective. Hendricks, 521 U. S., at 363. Here, as in Hendricks, nothing on the statute's face suggests that the legislature sought to create anything other than a civil scheme designed to protect the public from harm. Id., at 361. The contrary conclusion is not required by the Alaska Constitution's inclusion of the need to protect the public as one of the purposes of criminal administration. Where a legislative restriction is an incident of the State's power to protect the public health and safety, it will be considered as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment. E.g., Flemming v. Nestor, 363 U. S. 603, 616. Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent, see, e.g., Hendricks, 521 U. S., at 361, but are open to debate in this case. The Act's notification provisions are codified in the State's Health, Safety, and Housing Code, confirming the conclusion that the statute was intended as a nonpunitive regulatory measure. Cf., id., at 361. The fact that the Act's registration provisions are codified in the State's Code of Criminal Procedure is not dispositive, since a statute's location and labels do not by themselves transform a civil remedy into a criminal one. See United States v. One Assortment of 89 Firearms, 465 U. S. 354, 364-365, and n. 6. The Code of Criminal Procedure contains many other provisions that do not involve criminal punishment. The Court's conclusion is not altered by the fact that the Act's implementing procedural mechanisms require the trial court to inform the defendant of the Act's requirements and, if possible, the period of registration required. That conclusion is strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the authority to promulgate implementing regulations with the Department of Public Safety, an agency charged with enforcing both criminal and civil regulatory laws. Also telling is the fact that the Act does not require the procedures adopted to contain any safeguards associated with the criminal process. By contemplating distinctly civil procedures, the legislature indicated clearly that it intended a civil, not a criminal, sanction. United States v. Ursery, 518 U. S. 267, 289. Pp. 5-9.

(c) Respondents cannot show, much less by the clearest proof, that the Act's effects negate Alaska's intention to establish a civil regulatory scheme. In analyzing the effects, the Court refers to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169, as a useful framework. First, the regulatory scheme, in its necessary operation, has not been regarded in the Nation's history and traditions as a punishment. The fact that sex offender registration and notification statutes are of fairly recent origin suggests that the Act was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing. Respondents' argument that the Act, particularly its notification provisions, resembles shaming punishments of the colonial period is unpersuasive. In contrast to those punishments, the Act's stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. The fact that Alaska posts offender information on the Internet does not alter this conclusion. Second, the Act does not subject respondents to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104. Moreover, its obligations are less harsh than the sanctions of occupational debarment, which the Court has held to be nonpunitive. See, e.g., ibid. Contrary to the Ninth Circuit's assertion, the record contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred. Also unavailing is that court's assertion that the periodic update requirement imposed an affirmative disability. The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision. While registrants must inform the authorities after they change their facial features, borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. Third, the Act does not promote the traditional aims of punishment. That it might deter future crimes is not dispositive. See, e.g., Hudson, supra, at 105. Moreover, the Ninth Circuit erred in concluding that the Act's registration obligations were retributive. While the Act does differentiate between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense, these broad categories and the reporting requirement's corresponding length are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective. Fourth, the Act has a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in their community. That the Act may not be narrowly drawn to accomplish the stated purpose is not dispositive, since such imprecision does not suggest that the Act's nonpunitive purpose is a "sham or mere pretext." Hendricks, supra, at 371 (Kennedy, J., concurring). Fifth, the regulatory scheme is not excessive with respect to the Act's purpose. The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not render the Act punitive. See, e.g., Hawker v. New York, 170 U. S. 189, 197. Hendricks, supra, at 357-368, 364, distinguished. Moreover, the wide dissemination of offender information does not render the Act excessive, given the general mobility of the population. The question here is not whether the legislature has made the best choice possible to address the problem it seeks to remedy, but whether the regulatory means chosen are reasonable in light of the nonpunitive objective. The Act meets this standard. Finally, the two remaining Mendoza-Martinez factors--whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime--are of little weight in this case. Pp. 9-19.

259 F. 3d 979, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.

CAPITAL CASES ( Favorable Disposition)

Frazier v. Alabama, 2003 Ala. Crim. App. LEXIS 48 (Ala Crim App 2/28/2003) Remand ordered "to conduct, if necessary, an evidentiary hearing, and to make written specific findings with regard to each of the claims presented at the hearing. The trial court should also make written specific findings of fact as to any ineffective-assistance-of-counsel claims that were denied on the merits, and clarify for the record, in a written order, any procedural bars applicable to the remaining arguments contained in the petition for postconviction relief."

The trial court's order summarily dismissing the postconviction petition does not contain any specific findings as to the appellant's ineffective-assistance-of-counsel claims and does not state which ineffective-assistance-of-counsel claims it was referring to when it found the claims to be without merit. This lack of findings in this regard is confusing because the trial court, in its order, had previously found that all of the appellant's other claims of ineffective assistance of counsel were due to be dismissed because they were not pleaded sufficiently or because they failed to state a claim or present a material issue of fact or law. Additionally, the postconviction petition contains numerous paragraphs alleging [*5] ineffective-assistance-of-counsel claims that were not included in the trial court's order. Therefore, this cause must be remanded for the trial court to enter specific findings of fact as to any ineffective assistance claims being denied on their merits, and for an evidentiary hearing, if deemed necessary.

Amendments to the Florida Rules of Criminal Procedure, 2003 Fla. LEXIS 260 (FL 2/27/2003) Setting the standards for state mental retardation claims and loosening the admissibility of juvenile records.

CAPITAL CASES ( Unfavorable Disposition)

Walton v. Angelone, 2003 U.S. App. LEXIS 3567 (4th Cir 2/27/2003) A panel of the Fourth Circuit denies a Certificate of Appealability on claims that allege [1] that Walton was not competent to plead guilty or stand trial; [2] that counsel claim was ineffective for failing to raise the issue of competency before the state trial court and/or on direct appeal; [3] that counsel was constitutionally ineffective for failing to raise the issue of competency before the state trial court and/or on direct appeal; [4] that his guilty pleas were not knowing, intelligent, and voluntary; [5] that he was denied constitutionally effective assistance of counsel when Gott failed to object to the appointment of Dr. Samenow; and [6] that trial counsel unreasonably failed to investigate and present mitigating mental health evidence. **Note that this opinion may well be withdrawn in order to comport it with Miller-El v. Cockrell as the decisions were handed down within only days of each other and the Walton panel's holdings do not appear to meet the standard set out in Miller-El relating to COAs.

Clark v. Alabama, 2003 Ala. Crim. App. LEXIS 68 (Ala Crim App 2/28/2003) (*RC) Relief denied, most notably, on claims [1] the trial court erred in conducting a moment of silence at the beginning of his trial; [2] that the prosecution impermissibly used race and gender to base his strikes; [3] the prosecution violated of the "ultimate issue rule" in question; [4] impermissible guilt and penalty phase victim impact; [5] the prosecution misstated facts during witness questioning, the opening and the closing; and [6] failure to instruct on heat of passion

Ziegler v. Alabama, 2003 Ala. Crim. App. LEXIS 56 (Ala. Crim. App. 2/28/2003) Relief denied, most notably, on claims [1] jury instructions permitted implementation of the death penalty without specific intent; [2] the trial court erred when it failed to give an instruction on the use of accomplice testimony and without the accomplice testimony, there was insufficient evidence to convict; [3] the jury instructions on the "especially heinous, atrocious or cruel" aggravating circumstance were unconstitutionally vague; and [4] failure to instruct on age as a mitigator.

Walton v. Florida, 2003 Fla. LEXIS 259 (FL 2/27/2003) Relief denied, most notably, on claims [1] that the trial court presiding over his resentencing erred in instructing the aggravating factors they could consider in making their recommendation; [2] the resentencing trial court improperly relied upon a sentencing order submitted by the State in sentencing him to death; [3] that death is disproportionate as he was not the triggerman & other co-defendants have had their death sentences vacated; [4] Brady v. Maryland; and [5] ineffective assistance of counsel relating to the introduction of evidence and failure to investigate.

NOTABLE NONCAPITAL CASES

Lewis v. Lewis, 2003 U.S. App. LEXIS 3669 (9th Cir 2/28/2003) (*RC) Batson reversal.

Ideally, a trial court faced with a Batson challenge under-takes a clearly-delineated three-step inquiry. We address [*13] the first two steps of this inquiry only briefly here, because this case involves the third step.

In the first step, a court facing a Batson challenge must determine whether the defendant has successfully made a prima facie showing of purposeful discrimination. n18 If the defendant has done so, the court must then proceed to the second step of the inquiry. In this step, "the burden shifts to the State to come forward with a neutral explanation for challenging" the jurors. n19 Thus, the court must listen to the prosecutor's proffered reasons for the strike and determine whether they are "a neutral explanation related to the particular case to be tried." n20 During step two, "the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." n21

It is in the third step, the step at issue in this case, that the court reaches the real meat of a Batson challenge. In the third step, the court has "the duty to determine if the defendant has established purposeful discrimination." n22 To fulfill its duty, the court must evaluate the prosecutor's proffered reasons. "A finding of discriminatory intent turns largely on the court's evaluation of the prosecutor's credibility." n23 As with any credibility finding, the court's own observations are of paramount importance. n24 Other factors come into play in a court's evaluation of a prosecutor's reasons as well, however.

Robertson v. Cain, 2003 U.S. App. LEXIS 3899 (5th Cir 3/5/2003) "[T]he specific jury instruction on the law of principals given in this case violated clearly established federal law by improperly relieving the prosecution of the burden of proving an essential element of the crime (namely, the defendant's specific intent to kill)."

USA v. Crawford, 2003 U.S. App. LEXIS 3891 (9th Cir 3/5/2003) Parole search that led to confesssion is suppressed.

FOCUS

The Focus section this week is taken from Prof. Carol S. Steiker, "Things Fall Apart, but the Center Holds: The Supreme Court and the Death Penalty" a commentary December 2002 edition of the New York University Law Review.(C) Professor Steiker's premise is that the center of the Supreme Court is holding and that "neither judicial abolition of the death penalty nor abolition of the Supreme Court's Eighth Amendment jurisprudence currently commands a majority of the Court.. . . the cautious and slowly reforming middle has held—and seems likely to hold—the reins of the Court’s capital jurisprudence for the foreseeable future."

Last June, in the course of a week, the Supreme Court issued two death penalty decisions—Atkins v. Virginia1 and Ring v. Arizona2— which together invalidated, at least in part, the administration of capital punishment in roughly two-thirds of the American states that currently retain the death penalty on their books.3 Atkins prohibited the application of the death penalty to defendants with mental retardation in the twenty states without statutes already precluding such application, and Ring precluded judges (as opposed to juries) from making factual determinations that render a defendant eligible for capital punishment in the five states where judges alone make capitalsentencing determinations. In addition, Ring is likely to affect four states with hybrid sentencing schemes that mandate shared responsibility between judges and juries.4

The claims upon which the defendants prevailed in these two cases were not new ones; they had been made—and rejected by the Court—not very long ago, in 1989 and 1990, respectively.5 The Supreme Court’s double about-face was greeted, appropriately, as big news.6 Such a significant shift is unprecedented in the “modern era" of the death penalty.7 Instead of “tinker[ing] with the machinery of death,”8 the Court has done something that looks, at first glance, more like an overhaul—one designed to appeal to a new generation of death penalty consumers. If the Court had a public relations team for its death penalty jurisprudence, their message might be something like, “This is not your father’s death penalty.”

There is both more and less here than meets the eye. While an about-face generally signals on its surface only the rethinking of par ticular doctrines by particular justices, these decisions will have widespread impact, both doctrinally and atmospherically, in ways that reach far beyond the particular issues at stake in the two cases. Moreover, the Court’s own shift reflects a recent and more widespread cultural and political shift in popular attitudes and concerns about the death penalty. Even so, there is less of a change in the fundamental dynamics of the Supreme Court’s constitutional regulation of capital punishment than the foregoing might suggest. Since 1976, most of the major innovations in the Supreme Court’s death penalty jurisprudence have both dissipated popular discomfort with the retention of capital punishment and insulated death penalty practices from more sweeping constitutional challenges by ameliorating or appearing to ameliorate some of the more obviously problematic features of capital punishment administration. This result has been the consistent product of the internal political dynamics of the Court, with two absolutist poles competing for an essentially meliorist middle. There is ample reason to believe that the two landmark decisions of last Term will play a similar role, and that they reflect a political dynamic that has not changed despite substantial changes in the membership of the Court. Things may be falling apart within the narrow world of death penalty doctrine, but the center looks like it will probably hold—both in terms of the central role of constitutional regulation in preserving capital punishment through amelioration, as well as the power and vision of the Court’s political center.

I

THINGS FALL APART

There is no question that Atkins and Ring will have some significant repercussions on the administration of capital punishment. In the most immediate sense, the decisions will affect some number—quite possibly a large number—of death row inmates either by exempting them from execution altogether or by giving them new sentencing hearings.9 Although the precise number of inmates with mental retardation among the more than 3700 people currently on death row is at present unknown, it may well be substantial—more appropriately measured in hundreds rather than dozens.10 The number of those defendants with mental retardation who will be able to prove their condition in court, and thus be categorically exempted from capital punishment, will depend crucially on the definition of mental retardation and the procedures created for making such determinations in the jurisdiction in question. States will have to decide, among other things, whether to require proof of onset of mental retardation before the age of eighteen, what I.Q. score to choose as the threshold number (below 75? 70? 65?), whether to give the decision to the judge or the jury, whether to have the decision made before or after trial and/or sentencing, which party has the burden of proof on the issue, and what the standard of proof is. These determinations will tremendously affect the ultimate impact, in number of executions, of the ruling in Atkins.11

The number of inmates who, as a result of the Court’s decision in Ring, will be entitled to new capital sentencing hearings is also in question, though for reasons different from those relating to the Atkins case. All of those sentenced to death in the five states that provided for wholly judicial capital sentencing were sentenced in violation of the current rule of Ring, because judges made determinations of fact that now must be made by juries. But the Ring Court was silent on the issue of the retroactivity of its holding, and it is not at all clear that the ruling in Ring falls within either what might be termed the “substantive law” or the “bedrock procedural rule” exception to the Court’s current nonretroactivity doctrine.12 The single federal circuit court that has ruled so far did not apply Ring retroactively, noting that the Supreme Court has not announced the retroactivity of Ring

and that Apprendi v. New Jersey,13 the case of which Ring is but an application, does not itself fall within an exception to the Court’s nonretroactivity doctrine.14 If Ring is not applied retroactively, it will affect only those whose convictions are not yet final. Thus, in Arizona, the state at issue in the Ring case, only thirty of the 130 people on death row in that state would be in a position to receive new sentencing hearings.15

The application of Ring to the four states in which juries and judges share responsibility for capital sentencing is even murkier. Will Ring be applied to all cases in which the judge issued a death sentence when the jury recommended life? Or only when the jury’s recommendation of life depended on the jury’s failure to find any aggravating factor? Will it apply to any cases when the judge and jury agree on the death penalty, but for different reasons? Will the fact that juries are told of the “advisory” nature of their task in these hybrid schemes cast any question on the constitutionality, under the Sixth Amendment, of their factual findings? Is the weighing of aggravating circumstances against mitigating circumstances a “factual” finding that must be made by the jury? Or is it a sentencing determination which appropriately may be performed by a judge? These issues will be decided preliminarily in the state courts and legislatures of the affected states,16 but ultimately, no doubt, they will be litigated in federal courts as well.

It should be clear from the foregoing that while the effect of Atkins and Ring will be measured in part by the number of inmates who escape the death penalty or get a second chance at a sentencing hearing, perhaps a larger part of the impact of the two cases will be in the uncertainty and massive litigation they will spawn, which will temporarily halt the administration of capital punishment in some places, and certainly slow it down everywhere. The Atkins litigation undoubtedly will involve the definition of and procedures for determining mental retardation, and it may continue for years until the Supreme Court clarifies whether there are any constitutional requirements for such definitions and procedures. Less obviously, Atkins will reinvigorate claims of ineffective assistance of counsel in cases in which defense counsel fails to investigate or present evidence relating to the defendant’s childhood, educational difficulties, or mental infirmity. 17 Indeed, one of the perhaps unforeseen consequences of Atkins will likely be to raise the bar on what is considered adequate investigation by capital defense lawyers, given the fact that some evidence that used to be relevant only to mitigation will now exempt the defendant entirely from the ambit of the death penalty, no matter how overwhelming the aggravating facts might be.

Atkins also opens the door to litigation beyond the scope of mental retardation. For example, the holding in Atkins immediately began to generate interest in extending its reasoning, by analogy, to exempt juveniles and those with serious mental illness from the death penalty. Indeed, four of the Justices from the Atkins majority have already expressed their view that Atkins should be extended to exempt juveniles from the death penalty.18 In addition, not merely the holding, but the reasoning of the Atkins Court will provide much fodder for future Eighth Amendment litigation. In determining that the execution of mentally retarded offenders violated “evolving standards of decency,” the Atkins Court relied, in a tantalizingly vague and imprecise footnote, upon a “social and professional consensus” derived from the views expressed by professional organizations, representatives of religious communities, representatives of the world community, and polling data.19 While provoking strong expressions of scorn and derision from the dissenters,20 this controversial footnote opens a new path in Eighth Amendment litigation, one that has at least some potential to lead to extensions of Atkins or even to judicial abolition. In a similar fashion, though probably to a lesser degree, the decision in Ring will also create uncertainty, litigation, and calls for extension.

As noted above, most of the uncertainty will be in the four states with hybrid sentencing schemes rather than in the five states with judicial sentencing schemes that know they must rewrite their procedures. However, in all of the affected states, as the Court intimated in Ring itself, future litigation will be necessary to determine when and to what extent formal failures to have jury determinations of key facts may be deemed “harmless error.” Moreover, one additional question that is sure to arise is whether judges may make factual determinations necessary for capital sentencing in the event of a jury’s deadlock.21

Litigation will arise not only around these uncertainties but also around logical extensions of Ring’s holding. If aggravating circumstances are elements of the crime rather than sentencing factors, must they be charged in the indictment (at least in federal court, where indictments are required by the Fifth Amendment)? If the Sixth Amendment right to a jury trial applies to aggravating circumstances, what about the Sixth Amendment’s Confrontation Clause? Already, one federal district judge has struck down the federal death penalty statute under Ring on the ground that the statute’s specific provision that the Federal Rules of Evidence do not apply to capital sentencing proceedings violates the defendant’s Sixth Amendment rights of confrontation and cross-examination of witnesses.22 Such an extension of Ring would require changes in the evidentiary rules that currently apply in a large number of death penalty states, which authorize informality similar to the federal statute.23 Furthermore, if statutory aggravating factors are elements of the offense that must be found by a jury, what about constitutionally required “culpability” facts? For example, what about the Enmund/Tison requirement that a capital defendant convicted of felony murder must be a “major participant” in the underlying felony and have exhibited “indifference to human life”?24 Or the new Atkins requirement that the defendant not be mentally retarded?

The above brief catalogue of both the disarray and the sense of new possibilities that characterize current capital litigation is good evidence of the significance of the Court’s recent decisions. But their greatest significance is probably not doctrinal. Rather, the decisions in Ring and especially Atkins are clearly reflections of a larger shift in cultural and political attitudes about capital punishment. As the Supreme Court’s turn-around from Furman’s abolition to Gregg’s reinstatement of capital punishment illustrated at an earlier time, truly substantial judicial limitations on the use of capital punishment are likely only in the absence of public backlash and resistance to limitations on the death penalty. Of course, this is partly an obvious result of an Eighth Amendment doctrine that the Court has explicitly moored to “evolving standards of decency.” But it is also a reflection of the cautious and moderate self-conception of the Supreme Court as an institution in this post–Warren Court era. Atkins was unthinkable even five years ago, not only because the number of states outlawing capital punishment for mentally retarded offenders had not yet accelerated quickly enough, but also because the last five years have seen a striking and unusual shift in public attitudes that both presaged and made possible the Court’s decisions.

This shift in public attitudes has its roots, as I have argued elsewhere, 25 in the erosion of public confidence in the existence of extensive safeguards surrounding the use of capital punishment in our country. Highly visible legislation like the Anti-Terrorism and Effective Death Penalty Act of 1996,26 which narrowed the availability of habeas corpus for death row inmates, combined with dramatic cases of death row exonerations, terrible capital defense lawyers, exculpatory evidence suppressed by the prosecution, and inculpatory evidence offered by unreliable jail-house snitches, resulted in nothing short of a sea change in public attitudes. The exoneration of thirteen death row inmates in Illinois alone—no doubt the most dramatic catalyst of change in the last five years—led to a state-wide moratorium imposed by Republican Governor George Ryan, who was even considering granting clemency to the entire death row population of the state before the end of his term.27 Maryland’s Governor Parris Glendening recently followed suit with a state-wide moratorium on capital punishment pending a study of racial bias within the state.28

A wide variety of legislation reforming the capital process to better protect the innocent has been passed or is pending in Congress and in state legislatures around the country. Public opinion polling data has shown dramatic drops in public support for capital punishment, documenting a rapid descent from a high of 80% in favor in 1994 to a low of 65% in favor in 2001, the lowest level of support in nineteen years.29 Moreover, while abolitionists still remain a distinct minority in the polls, substantial majorities report supporting a moratorium on executions until problems in the system can be studied and remedied.30 Rather surprisingly, there is little evidence that these new concerns about the administration of capital punishment have been strongly diminished by the events of September 11 and the ensuing war on terrorism.31 Finally, the best evidence that we have turned some national corner regarding the meaning of the death penalty may be the fact that a potential presidential candidate in 2004 has declared his support for a moratorium on the use of capital punishment, something that was unheard of as recently as election year 2000.32

The Court’s decisions in Atkins and Ring do not merely reflect this trend in public attitudes toward skepticism about the administration of capital punishment; to some degree, of course, the Court’s decisions reinforce this skepticism. While the Court’s decisions create new headaches and costs for states that wish to continue to administer capital punishment, they also embolden abolitionist litigators to push further and encourage federal court judges to consider challenges they might otherwise dismiss out of hand. It is no coincidence that within a three-month period following the end of the Supreme Court’s Term, two district court judges independently struck down the federal death penalty on quite different grounds.33 Moreover, two Supreme Court Justices recently discussed the death penalty in fora outside of the Court,34 and a federal court of appeals judge made public, nonjudicial remarks about his concerns about the administration of capital punishment in the United States.35 Thus, in deciding Atkins and Ring in the way that it did, the Court not only acknowledges an ongoing national conversation about the death penalty but also participates in the dialogue and encourages continued debate.

II

THE CENTER HOLDS

Without denigrating the foregoing case for the significance of the Court’s decisions in Atkins and Ring, it is important to recognize how those decisions fit into the larger, longer-term pattern of constitutional regulation of capital punishment. A bird’s-eye view gives us reason to qualify the foregoing account of Ring and Atkins by allowing us to see them as more than just a reflection and an enactment of a fundamental shift in public attitudes. They are also, simultaneously, part of a continuous process of amelioration that is more likely to stabilize than to destabilize capital punishment in the long run. The Court’s opinions may have ridden on a tide of public sentiment, and they may have even contributed their own rivulets to that tide. But ultimately and paradoxically, judicial regulation of capital punishment, as practiced by our Supreme Court over the past quarter-century, has been more likely to dissipate than to fortify such movements.

Despite its changing membership, the Court has produced a repeating pattern and maintained a consistent political dynamic on the issue of capital punishment: Two absolutist poles compete for the middle, which then, of necessity, charts a course of cautious amelioration. Ring and Atkins, in different ways, fit both the pattern and the politics of this history and thus may constitute less of a break with the past than might initially appear.

As I have argued more extensively elsewhere,36 the Supreme Court’s project of constitutional regulation of capital punishment since 1976 has played a role in legitimating and thus stabilizing the practice of capital punishment, primarily by generating an appearance of intensive judicial scrutiny and regulation despite its virtual absence. The Court’s cases, by continually refining the rules of capital sentencing procedures, have helped to perpetuate (though perhaps unintentionally) a demonstrably false sense that constitutional regulation actually rationalizes the capital sentencing process and thus protects against inaccurate, arbitrary, or discriminatory results. This false sense is conveyed, in different ways, to actors both within and outside of the actual legal process.

The Court’s decision in Ring is entirely consistent with this account. While Ring made headlines because it overturned a recent prior ruling and cast doubt upon the sentencing schemes of at least nine states, at the level of legal doctrine, the decision was merely the application of a distinction—Apprendi’s new formulation of the difference between “elements” of a crime and “sentencing factors”—that had been developed over a number of years in the noncapital context.

That it took several years and a deeply divided Court to apply Apprendi’s ordinary criminal sentencing rule to capital sentencing turns on its head the purported Eighth Amendment doctrine that “heightened reliability” ought to be ensured in capital cases.37 Moreover, while there is no good rationale for failing to apply Apprendi to capital cases,38 there is also not much reason to think that the Apprendi rule will prove to be very significant in rationalizing the capital process. In some jurisdictions, most notably Alabama, increasing the jury’s role and decreasing the judge’s role in capital sentencing seems likely to help capital defendants, given that the overwhelming majority of judicial overrides of jury sentences in Alabama have been from life to death rather than from death to life (83-7).39 In other jurisdictions, however, such as Delaware, reducing the judicial role might hurt capital defendants—all seven judicial overrides in that state went from death to life.40

For the most part, experts seem to agree that the Alabama affect outweighs the Delaware effect and that judges are generally more likely to sentence to death than juries.41 Even so, the most that might be said about Ring is that, if the nine affected states all respond by enacting jury sentencing instead of judge sentencing, there probably will be somewhat fewer death sentences. But Ring quite explicitly does not require jury sentencing;42 it merely requires that a jury find any facts necessary to make a defendant eligible for the death penalty. After that point, Ring’s holding does not appear to prevent judicial sentencing or judicial overrides from life to death; thus, states will remain free to retain or enact judicial sentencing or overrides so long as the jury’s fact-finding role is assured, either at the trial itself or at the penalty phase. When all is said and done, Ring’s significance in the scheme of constitutional regulation of capital punishment is small— and much smaller than its apparent significance as an overruling of recent precedent.

Atkins is a different story. Its categorical exemption of mentally retarded offenders is likely to have a much bigger impact on the present and future shape of death row, and it cannot fairly be characterized as mere procedural tinkering that falsely gives the impression of judicial scrutiny despite its absence. Rather, Atkins is precisely the kind of regulation that I argued lay along the “road not taken” in the Supreme Court’s overall project of constitutional regulation of capital punishment—the road of serious substantive limitations on the use of the penalty.43 It turns out, however, that even real substantive limitations on the use of capital punishment can contribute to the stabilization of the death penalty in a different way—through what I have termed “entrenchment” rather than “legitimation.”44 The threat of stabilization that entrenchment presents is the possibility that real progress toward eliminating or limiting real problems with the administration of capital punishment can sap the very critical scrutiny that gave rise to the reforming impulse.45 This dynamic is no less real in the judicial arena than in the legislative one; indeed, the brief history of constitutional regulation of capital punishment since 1976 shows both the power and the limits of substantive exemptions from the ambit of the death penalty.

The most instructive past example of the possibility of entrenchment through substantive exemption is the Supreme Court’s decision in Coker v. Georgia,46 ruling that capital punishment is always a disproportionate punishment for the rape of an adult woman. Because black men who raped white women were extraordinarily more likely to receive the death penalty than any other racial combination, Coker’s elimination of the death penalty for rape, although formally premised entirely on grounds of proportionality, managed to eliminate the most racially disproportionate use of capital punishment at the same time.47 Thus, one decade after Coker, when the Court was faced, in McCleskey v. Kemp,48 with a constitutional challenge to capital punishment based on its racially disproportionate use in murder cases, multiple regression analysis found only a weak “race-of-the-defendant,” as compared to a “race-of-the-victim,” effect,49 when both effects almost certainly would have been far more evident had rape cases been considered. Coker’s amelioration (though not elimination) of racial bias in the administration of capital punishment thus undercut both the degree of outrage such bias could continue to evoke and also the strength of legal claims based directly on such bias in the future.

The Court’s other categorical exemptions similarly have acted as double-edged swords both by ameliorating some of the more extreme applications of capital punishment and by undermining the power of abolitionists’ objections to the practice of capital punishment by exempting the most powerful “poster children” of the abolitionist movement. 50 Thus, even as Atkins is celebrated—as was Coker, Edmund, and Thompson—by those who seek to eliminate capital punishment, it nonetheless may contribute to the overall stabilizing effect of Supreme Court constitutional regulation.

Finally, both Ring and Atkins may contribute to the stabilization of capital punishment in one further way that demonstrates continuity with the overall impact of constitutional regulation since 1976. As in most, if not all, of the Supreme Court’s constitutional pronouncements, the decisions in Atkins and Ring leave numerous obvious subquestions undecided, even as state legislatures must begin redrafting their capital statutes and state courts must begin applying the preliminary rulings. Such a situation virtually ensures that some state legislatures and state courts will run afoul of what the lower federal courts or the Supreme Court itself will eventually determine that the preliminary rulings entail, contributing in large part to the huge number of reversals in capital cases that has been documented in the post-1976 era.51 This high rate of reversal of capital convictions and sentences might destabilize the practice of capital punishment, if one accepts— as authors of the study documenting the reversal rate contend—that it demonstrates that the capital justice system is “broken.”52 But the high rate of reversal also contributes both to the length of time that capital defendants spend on death row and the impression that their cases are, indeed, getting a thorough and searching review. Moreover, the length of time that the average capital defendant spends on death row not only promotes the view that review is adequately (or more than adequately) rigorous, it has thus far allowed every death row inmate authoritatively exonerated by DNA evidence to be released prior to execution, leaving abolitionists and journalists to continue to scramble for the “proven” executed innocent—the holy grail of the abolitionist movement.

The more the Supreme Court slows down, muddies up, and nibbles around the edges of the administration of capital punishment, the harder it becomes to sharpen the focus of the debate in a way that is necessary for abolition to occur. In short, the course of slow amelioration that the Supreme Court has charted with regard to capital punishment since 1976 may well have impeded the movement toward abolition, and the cases of the last Term may prove no exception to this ongoing dynamic.

Atkins and Ring are the predictable products53 of a long-term meliorist approach to capital punishment, which itself is the product of a consistent struggle between two political poles on the Court. From the time of Furman, the Court has always had its wing of judicial abolitionists —originally Justices Brennan and Marshall, with Justice Blackmun joining them only at the end of his career. Also from the time of Furman, the Court has had its share of constitutional skeptics —led, in Furman, by Chief Justice Burger, and in the previous year, by Justice Harlan in McGautha v. California.54 The skeptics and their followers doubted that the Constitution imposed substantial limitations on the administration of state (or federal) death penalty schemes. The meliorist middle, among them Justice Stevens, appeared in 1976—seizing the helm in Gregg and the quartet of accompanying cases that reinstated the death penalty in America.55 From 1976 on, the struggle between the poles has persisted, despite changing membership, and the meliorist middle has continued to dominate.

What Atkins and Ring demonstrate is that the same struggle, with the same probable outcome, is likely to continue on the Court for some time to come. Atkins itself was authored by the same Justice who first voted on the death penalty as part of the plurality in Gregg—Justice Stevens, a long-time proponent of amelioration. Surprisingly, Justice Breyer, whose concurring opinion in Ring has received remarkably little attention, appears to be approaching the abolitionist pole, which has been vacant since the retirement of Justice Blackmun. Justice Breyer’s concurrence, in a fashion reminiscent of Justice Blackmun’s well-known dissent from denial of certiorari in Callins v. Collins,56 catalogues the many flaws in the administration of capital punishment in the United States today.57 While he does not go so far as to call for constitutional abolition of capital punishment, his critique provides much of the justification for such a move in the future.

Nevertheless, despite recent changes in the Court’s death penalty jurisprudence, the abolitionist pole is still clearly the weaker pole on the Court; Justice Breyer wrote for himself alone in Ring. On the opposite end of the spectrum, Justice Scalia is the most vocal heir to Justices Harlan and Burger, and his concurrence in Ring is the clearest statement yet of his disdain for the Court’s Eighth Amendment jurisprudence, perhaps because he reluctantly agreed to swallow that disdain in order to apply and underscore the rule of Apprendi, which he has championed for a number of years. Unlike Justice Breyer, Justice Scalia is not alone: He stands in agreement with both Justice Thomas (who joined his Ring concurrence) and Chief Justice Rehnquist (who was always a solid companion to Chief Justice Burger in the early days of death penalty litigation).

In sum, support for neither judicial abolition of the death penalty nor abolition of the Supreme Court’s Eighth Amendment jurisprudence currently commands a majority of the Court. Thus, although the cases of last Term may have given the impression, in some respects, that the Court’s death penalty law was falling apart, in fact, the cautious and slowly reforming middle has held—and seems likely to hold—the reins of the Court’s capital jurisprudence for the foreseeable future.

OTHER RESOURCES

The Death Penalty Information Center (Deathpenaltyinfo.org) notes:

Houston Police Chief Urges Freeze on Harris County Executions

Houston Police Chief C.O. Bradford told the Texas House Committee on General Investigations that execution dates should not be set for seven Harris County men on the state's death row until DNA evidence in these cases can be reviewed a second time. The comments stem from a December audit of the Houston Police Department's crime lab in which auditors found instances of improper lab practices and shoddy record keeping. (See below) The problems were so egregious that the department shut the lab down in January. Kevin Bailey, Chairman of the House Committee, stated, "Until we resolve this and can be sure that people were rightly convicted, if DNA was used in any conviction of a death penalty, there ought to be a hold on those people sentenced to death." Bradford told the committee that the Police Department's internal investigation of the crime lab, labeled by Department of Public Safety DNA expert Irma Rios as among the worst labs she has ever seen, should be completed by the end of March. (Houston Chronicle, March 7, 2003) See Innocence and New Voices.

NEW RESOURCES: Common Courage Press Offers Two Death Penalty Books

Publishers at Common Courage Press have released two books related to the death penalty. "The Death Game: Capital Punishment and the Luck of the Draw," (Common Courage Press, 2003) is a new book by Mike Gray. Using a series of death penalty cases from across the nation, this book examines issues of innocence, police brutality, pressures on prosecutors and judges seeking career advancement, and the questionable accuracy of eyewitness accounts. The second book, "Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal," (Common Courage Press, 2002) authored by Dave Lindorff, examines Abu-Jamal's capital conviction. It also includes an opening insert about his Batson claim that black jurors were purposefully excluded from the jury that sent him to death row. For more information about these books, see Common Courage Press's Web Site. See also, Studies, Books, and Law Reviews.

Illinois House Judiciary Committee Votes to Ban Death Penalty

The Illinois House Judiciary Committee voted to abolish the death penalty. After hearing testimony from men who were wrongly sentenced to die for crimes they did not commit, members of the committee voted 8-4 to support the ban. Among those testifying was Illinois death row exoneree Gary Gauger, who was wrongly convicted for the murder of his parents. "The death penalty has no useful business in a civilized society," Gauger noted. The abolition bill now proceeds to House floor for consideration. (Associated Press, March 6, 2003). See Innocence and Illinois Commission on Capital Punishment.

Execution of Texas Man Slated for March 12 Despite Questions of Innocence

Texas is scheduled to execute Delma Banks on March 12 despite the questions of innocence that have been raised in his case. (See below) Attorneys for Banks assert that, in addition to evidence of racial bias in this case and the failure of Banks' trial attorney to provide an adequate defense, the underlying case against their client depends upon the testimony of two unreliable witnesses who have since recanted their testimony. Banks is now seeking relief from the U.S. Supreme Court. The Honorable William S. Sessions, the former director of the FBI, has joined other distinguished former judges and prosecutors to file a brief in the Supreme Court supporting Banks because his claims "by their very nature raise issues that threaten the ability of the adversarial system to produce just results." Read the Attorneys' Press Release. See also Innocence and Race.

NEW RESOURCE: Race, Region, and Death Sentencing in Illinois, 1988-1997

"Race, Region, and Death Sentencing in Illinois, 1988-1997" features research completed for the Illinois Commission on Capital Punishment. Authors Glenn L. Pierce and Michael L. Radelet conclude that particularly race of the victim plays a significant role in who is sentenced to death in Illinois. 81 Oregon Law Review 39 (2002) See also Race and Illinois Commission on Capital Punishment.

TRACKING PROGRAM INFORMATION

Tracking program of covered cases on innocence and on race claims. The following designators are being used currently, but feel free to forward comments on how the tracking system might be improved:

*PCI from the face of the decision a possible claim of actual innocence appears possible.

*SCI from the face of the decision (and possibly other evidence) a strong claim of actual innocence is had.

*RC from the face of the decision questions about the interplay of race is made.

ADDITIONAL RESOURCES

If you have found this e-zine useful feel free to pass it on to a friend or colleague. You might also want to visit: http://www.lidab.com/ (Louisiana's public defender), probono.net (ABA/ABCNY) & http://www.capdefnet.org/ (federal defender & arguably the best death penalty defense site on the net). These other resources have many prepackaged motions and law guides dealing with death penalty issue. Findlaw.com 's new service provides e-mail style newsletters on a wide variety of subjects at newsletters.findlaw.com , including both a free weekly free criminal law and limited state court decision lists. For information generally on the death penalty please visit the Death Penalty Information Center (http://www.deathpenaltyinfo.org).