REFINING THE DEATH PENALTY
Once the Furman objections had been overcome by the Gregg decision in 1976, the majority of states reintroduced the death penalty. The execution of Gary Gilmore opened the floodgates and many more executions were scheduled. Death row began to fill up in many prisons. But in the wake of the Gregg decision, several other landmark cases were heard which limited and defined how America would practice the death penalty. In this chapter we will look at the main decisions and how they affected capital punishment.
At one time, several crimes were punishable by death, including rape, aggravated larceny, treason, kidnapping, and, of course, murder. But as standards of decency evolved, it became difficult to justify the death penalty in all such cases. Over the years since 1976, America has evolved its thinking on capital punishment in several important aspects so that now only certain classes of murder draw down the ultimate sanction.
IS RAPE A DEATH PENALTY OFFENSE?
In 1977, just a year after the reintroduction of the death penalty, the Supreme Court decided that it was against the Eighth Amendment to execute people for rape. The landmark decision was handed down in Coker v. Georgia.
Ehrlich Anthony Coker was bad to the bone. He was a career criminal with a propensity for extreme violence and ended up serving a lengthy sentence for rape, kidnapping, aggravated assault, and first-degree murder. This had not resulted in the death sentence because his case was heard during the moratorium. Instead he got three life sentences, two twenty-year sentences, and an eight-year sentence. He had raped and killed a sixteen-year-old, and raped and badly injured another sixteen-year-old. But eighteen months into his sentence, he managed to escape from Wade Correctional Institute in Georgia. While he was on the run, he broke into the home of newlyweds, Allen and Elnita Carver, near Waycross, Georgia. He tied Allen up in the bathroom and then raped sixteen-year-old Elnita before bundling her into the couple’s car, which he then stole. He was arrested in the stolen car with his terrified victim tied up beside him. Rape was a capital offense and after his conviction the jury sentenced him to die in the electric chair during the sentencing portion of the hearing. They did this because of the presence of aggravating factors. He had previous convictions for a capital offense (first-degree murder), and the rape was committed during the course of another capital felony—an armed robbery. The Georgia Supreme Court upheld the sentence. Then the defense attorneys brought their appeal to the US Supreme Court.
In the plurality opinion (a sort of average opinion handed down by a divided court) written by Justice Byron White, he noted that rape in itself does not cause serious injury, writing: “Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person.”
The court also considered legal practice at the time. In 1925 only eighteen states had allowed the death penalty for rape, and by 1971 this number had dropped to sixteen—less than half of the states that allowed executions. But post-Furman, only one state retained rape of an adult woman as a capital offense—Georgia. Of the sixty-three rape cases in Georgia considered by the Supreme Court, they found only six of those involved a death sentence, and only five of those death sentences were upheld by the Georgia Supreme Court. So the US Supreme Court concluded that death sentences were rare in rape cases—an unusual punishment.
They acknowledged the seriousness of rape, but added, “In terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life.” For that reason, the Court concluded that the electric chair was excessive punishment for “the rapist who, as such, does not take human life.” The aggravating factors considered by the jury did not change this. The death sentences against Coker and four other rapists sentenced to the chair (John Hooks, John Eberheart, Donald Boyer, and William Hughes) were commuted to life imprisonment.
The death penalty for the rape of an adult was no longer constitutional. However two states—Mississippi and Florida—retained the death penalty for the rape of a child. The main consequence of the Coker decision was that the death penalty was largely restricted to crimes in which someone had been killed.
As for Ehrlich Coker, he is still behind bars at the Philips State Prison in Georgia, after serving the first thirty-seven years of multiple life terms. Interestingly, his son Eric Lee Coker is also doing time in North Carolina. He was sentenced to a minimum of twenty-one years for repeatedly molesting a fourteen-year-old relative and for trying to hire a hit man to take out his wife.
In later years, the Supreme Court revisited the question of rape when the case of Kennedy v. Louisiana came before it. Patrick O’Neal Kennedy, from greater New Orleans, was a huge 300 pound man who violently raped his eight-year-old stepdaughter, causing her extensive internal injuries. He was offered a deal to plead guilty and avoid the death penalty in 2003, but refused. On conviction he was sentenced to death, a decision upheld by the Louisiana Supreme Court.
The US Supreme Court ruled, in 2008, that the death penalty was not constitutional for the rape of a minor. Thus the death penalty is now unconstitutional in all cases that do not involve murder or crimes against the state (espionage and treason).
Felony murder is a special class of murder. If a defendant accidentally kills someone in the course of a felony, he can be charged with murder. Or if he is involved with others in a felony and someone else in the criminal enterprise commits murder then all those involved can be charged with murder, even if they had nothing to do with the killing and did not approve it. So, if you are the lookout in an armed robbery and someone gets killed inside while you are outside and well away from the crime, you are still guilty of murder. Not every state recognizes felony murder, but in those that do, it can be a capital offense. This has been upheld by the Supreme Court in two key rulings. The decision in Enmund v. Florida was that the death penalty could not be imposed on someone who did not kill, attempt to kill, or intend to kill. But in Tison v. Arizona, the court decided that the death penalty could be imposed on someone who was a major participant in a felony and acted with reckless indifference to human life.
In other words, executing someone for felony murder is constitutional, but each case has to be carefully considered on its merits.
Earl Enmund was a getaway driver in an armed robbery of a couple in rural Florida. His accomplices, Sampson and Jeanette Armstrong, rang the doorbell of the farmhouse of Thomas and Eunice Kersey. When Thomas opened the door, they held him at gunpoint, but Eunice came out with a gun and wounded Jeanette. Then Sampson shot back, killing the couple. Both Armstrongs were sentenced to death and so was their getaway driver, Enmund. While the sentences of the Armstrongs were upheld, that of Enmund was commuted to life imprisonment after the Supreme Court ruled that he had not participated in the killing and had not agreed to the killing taking place.
Raymond and Ricky Tison were not so lucky when their case came before the Supreme Court. Their troubles all began with a prison break in 1978. Their father, Gary, had been doing life at the Arizona State Prison in Florence for killing a prison guard. Ricky, Raymond, and their brother Donald visited him for an informal picnic—a practice allowed by the prison. But instead of food and beverages in their cooler box, they had sawn-off shotguns and revolvers. They sprang their father and his cellmate, Randy Greenawalt, and drove towards California. But their car broke down near the border. A Good Samaritan stopped to help. For his troubles, he, his wife, his twenty-two-month-old son, and his fifteen-year-old niece were killed. They were all killed by Gary Tison. A few days later, Tison and Greenawalt killed a honeymooning couple. It is not known which of them did the actual killing, but they had acted together. They were finally captured after a shoot-out, during which Donald Tison was killed. The others escaped into the desert where Gary Tison died of dehydration and heat exhaustion. Raymond and Ricky Tison were quickly recaptured, as was Greenawalt. All three were sentenced to death for four murders and numerous other crimes. Although Greenawalt and Gary Tison had been the shooters, the two young brothers were sentenced to death for felony murder. They appealed, and the Supreme Court ruled that they could be executed. Unlike Enmund, they had willingly been part of a felony which resulted in many deaths. They had shown reckless disregard for human life and could be executed.
Greenawalt was executed by lethal injection, but the two brothers eventually had their sentences commuted to life in prison because they were in their teens at the time of their father’s prison break.
The Enmund and Tison decisions determined how felony murders are handled in capital cases to this day.
CAN WE EXECUTE THE MENTALLY HANDICAPPED?
ATKINS v. VIRGINIA
John Paul Penry, born in 1956, is an intellectually disabled man who raped and killed Pamela Moseley, the twenty-two-year-old sister of American football star Mark Moseley, shortly after being released from prison in Texas in 1979 for a prior rape. His attorney argued that he had the reasoning capacity of a seven-year-old. While this was an exaggeration, he was seriously mentally subnormal. Whether his problems were enough to classify him as disabled is open to debate. Despite this, in 1980 he was sentenced to death for the murder. The Supreme Court considered his case twice—both times ruling that his intellectual disability did not constitute grounds for mercy.
Though a grown man, Penry now fills his time drawing in coloring books and he still believes in Santa Claus. After being tried and retried three times, he is no longer on death row but is serving life for the murder of the young woman he raped. However, the Supreme Court, in Penry v. Lynaugh (1989), decided that it was not against his Eighth Amendment rights and was not a cruel and unusual punishment to execute a mentally impaired man.
This is the background to Aikens v. Virginia.
On the night of August 16, 1996, Daryl Atkins and William Jones abducted an airman from Langley Air Force Base at a late-night convenience store. They robbed him, forced him at gunpoint to withdraw money from an ATM and then shot him eight times. Aikens was most likely the shooter. Jones gave evidence against Aikens in return for a life sentence. Aikens was convicted of first-degree murder, and the trial moved on to the sentencing phase. The jury heard that Aikens had an IQ of 59, making him mildly “mentally retarded,” as the phrase was in those days. Despite this, he was sentenced to death.
The Supreme Court of Virginia upheld the sentence, basing their decision on Penry v. Lynaugh. But when the case came before the US Supreme Court, the justices felt that the prohibition against cruel and unusual punishments needed to be interpreted in the light of “evolving standards of decency that mark the progress of a maturing society.” They noted that twenty-one states had enacted legislation banning the execution of the intellectually disabled, leaving only ten death penalty states without this ban. That was a clear consensus.
Atkins would not face the executioner.
However, they did leave a degree of discretion to individual states: each state was entitled to define what they considered to be intellectual disability.
Some years later, in July 2005, a jury in Virginia reconsidered the Atkins case. They found that his years of contact with his lawyers—and his years of incarceration away from drugs and alcohol—had improved his IQ and that he was therefore eligible for execution. He was given an execution date of December 2, 2005, but this was later stayed. Three years later, due to misconduct on the part of the prosecution, Atkins’s sentence was once again commuted to life imprisonment.
Following the Atkins decision, three criteria were used to determine if someone was mentally eligible for execution. If they had sub-average intelligence (low IQ), a lack of fundamental social and practical skills, and had both conditions from a young age, they were considered mentally disabled and ineligible for execution. The cutoff point for low IQ was set at seventy. In 2014, in Hall v. Florida, this was altered slightly. Those with a borderline low IQ (70 to 75) could still claim mental disability if they could show other symptoms.
The execution of those with intellectual disabilities remains one of the most controversial aspects of the death penalty.
CAN WE EXECUTE JUVENILES?
ROPER v. SIMMONS
Religions and legal systems vary as to what age we become legally and morally responsible for our actions. At times it was as young as seven and children that age were hanged in England for minor crimes throughout the seventeenth and eighteenth century. The United States sent a fourteen-year-old child, George Stinney, to the electric chair in South Carolina in 1944. Since the death penalty came back into force in 1976, America has executed twenty-two men who committed their crimes while aged under eighteen. One of them was sixteen at the time of the triple murder he was convicted of, while the rest were seventeen. Three went to the chair: James Terry Roach in South Carolina on January 10, 1986; Dalton Prejean on May 18, 1990 in Louisiana; and Christopher Burger in Georgia on December 7, 1993. The rest were executed by lethal injection.
Several landmark decisions now govern how capital punishment applies to juveniles. The first was in 1988—Thompson v. Oklahoma. William Wayne Thompson, with others, beat to death his abusive brother-in-law. He was fifteen at the time and was tried as an adult and sentenced to death. The decision of the Supreme Court was that in the light of evolving standards of decency in society, it was not constitutional to execute someone so young. His sentence was commuted to life in prison.
So how young is too young? The Supreme Court attempted to answer this in Stanford v. Kentucky a year later. Kevin Stanford, a repeat offender, was just seventeen when he carried out an armed robbery at a gas station in Jefferson County, Kentucky. He raped the attendant and then shot her twice in the head, killing her. He was convicted and sentenced to death. When the Supreme Court considered the case they upheld the sentence. Justice Antonin Scalia wrote, “We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at sixteen or seventeen years of age. Accordingly, we conclude that such punishment does not offend the Eight Amendment’s prohibition against cruel and unusual punishment.”
Now the age limit was set at sixteen. That result would hold until 2005, when the Supreme Court considered the case of Roper v. Simmons.
Christopher Simmons was a troubled young man from Missouri. At the age of seventeen he decided to rob and murder someone, just for the experience. He believed that as a juvenile he would get away with it. With some young companions, he broke into a neighbor’s home and tied her up before driving to a state park where he threw her off a bridge to her death. She was alive and conscious when he threw her into the river, hog-tied and gagged. She died of drowning.
Describing the crime as “heinous,” the prosecutor sought and got the death penalty. As the case worked its way through the appeal process, the Missouri Supreme Court rejected the death penalty as Simmons was of low mental capacity. The State appealed this, and the case was considered by the US Supreme Court (Roper v. Simmons; Donald Roper being the superintendent of the correctional facility where Simmons was waiting on death row).
At this hearing the court ruled that it was cruel and unusual punishment to execute a person under the age of eighteen at the time of the murder, and the reason was that society had moved on and punishments had to keep pace with evolving standards of decency. There was a wealth of research to show that juveniles lack maturity and a sense of responsibility and are capable of more reckless behavior than adults. Most states barred people under the age of eighteen from voting, serving on juries, or marrying without parental consent. So how could they be eligible for execution?
The court also noted that only seven other countries permitted the execution of juveniles in the decade prior to the case—Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of the Congo, and China. All seven had since removed or restricted the practice. That left the United States as the only country in the world which executed juveniles. With the Simmons decision, the Supreme Court changed that.
Immediately the death sentences of seventy-two death row inmates were commuted to life in prison. Texas was the state affected most: there were twenty-nine juvenile offenders awaiting execution. In Alabama there were fourteen. No other state had more than five.
MITIGATING FACTORS MUST BE CONSIDERED
LOCKETT v. OHIO
Sandra Lockett was a getaway driver for a gang who robbed a pawnshop and killed the owner. Under Ohio law, she was guilty of aggravated murder and the death penalty was mandatory unless the victim had started the incident in which he had been killed, the killing had been carried out under duress, or the killing had been the result of mental deficiencies. None of these mitigating factors applied in the Lockett case, so she was sentenced to die.
Other mitigating factors could not be considered under the rules in Ohio. They were not part of the process. The Supreme Court was asked to consider whether this ban on considering other mitigating factors was constitutional. By a seven to one vote the Supreme Court upheld Lockett’s appeal and ruled that all mitigating factors must be considered in a death penalty case, not just a selection of listed mitigating factors.
THE “I DIDN’T DO IT” DEFENSE HOLMES v. SOUTH CAROLINA
Bobby Lee Holmes was convicted of raping, beating, and robbing forty dollars from an eighty-six-year-old retired school teacher Mary Stewart in her home in South Carolina in 1989. She died a year later from the injuries she received in the horrific attack, and Holmes was convicted of her murder. He appealed and was granted a retrial, where he was convicted once more.
During the retrial he tried to argue that another man, Jimmy McCaw White, a known felon, was also in the vicinity at the time and was the actual killer. But he was prevented from making this case because the court considered the forensic evidence against him so strong that he would not be able to raise an inference of innocence. The Supreme Court was eventually asked to consider whether this decision of the lower court was constitutional.
The final ruling was unanimous. The South Carolina court did not have the right to exclude evidence on the grounds that the prosecution case was so strong that new evidence could not provide an indication of possible innocence. It was not the job of the court to decide whether evidence not heard was too weak to be put to the jury. The original court had denied Holmes “a meaningful opportunity to present a complete defense.” Even if his story seemed preposterous, he had a right to tell it. His conviction was overturned. There would have to be a retrial.
For Holmes it was immaterial because his story of a third party carrying out the rape and murder was a fabrication. In 2007, he finally confessed to the murder in court and received a life sentence without the possibility of parole. And he didn’t even get to enjoy the intervening period out of prison. In 1992, while incarcerated and awaiting the original trial, he had assaulted a fellow inmate, beating him with an iron bar and breaking both his arms. For this he had received a twenty-year sentence. So the Supreme Court win made no material difference to his situation.
WHAT CONSTITUTES A HEINOUS CRIME?
In many states one of the aggravating factors which could draw down a death penalty is that the crime is vile and heinous. But what exactly constitutes a heinous murder? Several Supreme Court decisions have tried to put some precision into a vague aggravating factor.
Robert Godfrey was a Georgia man who became unhinged when his marriage broke up. He tried to reconcile with his wife but she rejected this effort. So he came to the trailer where she was staying with her mother and fired a shot through the window, killing his mother-in-law instantly. He then broke through the door of the trailer. As his young daughter tried to run out, he struck her on the head with the shotgun. Then he shot and killed his wife before calling state troopers and calmly waiting for them to arrive.
He was convicted of two first-degree murders and under the rules in Georgia at the time, he was sentenced to death. However the Supreme Court in Godfrey v. Georgia (1980) held that a death sentence could not be handed down when the only aggravating factor was that the murder was “outrageously or wantonly vile.” The justices made the point that if that was the only criterion, then it became a subjective matter as to what was a vile or heinous crime and thus opened the door to the sort of arbitrary and capricious application of the death sentence that had resulted in the original moratorium during the early seventies.
Though it could not be the only aggravating factor, the heinousness of a murder did remain a consideration and further Supreme Court appeals narrowed down what it meant in practice.
One of the cases considered was that of Jeffrey Walton, from Arizona. On March 2, 1986, he walked into a bar in Tucson with two companions. They planned on abducting and robbing someone in the bar and then dumping him in the desert while they made their getaway. The man they chose was an off-duty marine—Thomas Powell. They robbed him at gunpoint and forced him to drive out into the desert, where Walton shot him once in the head. Walton then gleefully boasted to his companions that he had “never seen a man pee in his pants before.”
A week later Walton was arrested and immediately admitted his involvement, leading detectives to the spot where he had shot the unarmed and defenseless man. They got a shock—the bullet had not immediately killed the marine. He had been blinded and disabled by the head wound and had died only hours before they got there of shock, dehydration, and other complications.
The jury convicted Walton of first-degree murder, and then the judge moved on to the second part of the trial—sentencing. In Arizona this was not a function of the jury. The judge sentenced Walton to death, finding that the crime was “heinous, cruel, or depraved,” and had been carried out for gain. During the inevitable appeals process the Supreme Court was asked to consider two questions: was it constitutional for the judge to handle the sentencing section without the help of the jury; and was the crime committed in an “especially heinous, cruel, or depraved manner.”
The Supreme Court ruled that the jury need not be involved in assessing the facts during the sentencing phase of a capital murder trial, as the mitigating and aggravating factors do not necessarily relate to the facts of the murder itself. For instance, a prior record has no bearing on whether the defendant is innocent or guilty, only on how the court might sentence him. So it was not a matter the jury need consider. The Supreme Court later changed its mind on this question, though. (Ring v. Arizona, 2002)
On the question of the heinousness of the crime, the Supreme Court decided that the definition of heinousness was not constitutionally vague. This was a reversal of the Godfrey v. Georgia ruling. They based the decision on the fact that in Arizona a judge, rather than a jury, decided if a crime was especially vile or heinous, and a judge would presumably be well versed in the law and would make the correct decision. The Court was showing remarkable faith in frail humanity.
In Ring v. Arizona, the Supreme Court changed its mind and ruled that juries must be involved in assessing aggravating and mitigating factors in death penalty cases.
Timothy Ring was an armed robber who held up an armored car at the Arrowhead Mall in Glendale, Arizona, on November 28, 1994, and shot the driver in the head. Although he had a minimal criminal record prior to the murder, he was sentenced to die. When the case came before the Supreme Court, the justices by a narrow margin ruled that Arizona’s sentencing scheme, with no jury involvement, was unconstitutional. This immediately cast doubt on the sentences of 168 death row inmates who had also been sentenced by judges in the absence of juries. Ring is currently serving a life sentence in Arizona.
SUMMARY
The Supreme Court has considered many capital cases since 1976, and as a result they have defined very precisely how the death penalty may be applied and what factors must be considered in imposing it.
Some of their key decisions are that juveniles (under eighteen at the time of the murder) can no longer be executed; mentally handicapped people, so long as they qualify by reason of the degree of their handicap, cannot be executed; the death penalty cannot apply for rape or robbery, just first-degree murder; it can be imposed for felony murder, but is not automatic; mitigating factors must be considered, as well as aggravating factors; the defendant has a right to make a full defense, however unlikely his story; and the jury must be involved in imposing the death penalty.
That left one question to be answered—and perhaps the most controversial of all. Given that one in twenty-five on death row is innocent of the crime for which they have been convicted, is it constitutional to execute an innocent person? That is a question we will come back to in a later chapter.