Death-is-Different Jurisprudence and the Role of the Capital Jury

1978).1 See, e.g., Furman v. Georgia, 408 U.S. 238, 286-89 (1972) (Brennan, J., concurring) ("[d]eath is a unique punishment"; "[d]eath . . . is in a class by itself"); id. at 306 (Stewart, J., concurring) ("penalty of death differs from all other forms of criminal punishment, not in degree but in kind"); Gregg v. Georgia, 428 U.S. 153, 188 (1976) Uoint opinion of Stewart, Powell, and Stevens, JJ.) ("penalty of death is different in kind from any other punishment" and emphasizing its "uniqueness"); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) ("penalty of death is qualitatively different from a sentence of imprisonment, however long"); Lockett v. Ohio, 438 U.S. 586, 604 (1978) ("qualitatively different"); Spaziano v. Florida, 468 U.S. 447, 459 (1984) (citing Court's prior recognition of the "qualitative difference of the death penalty"); id. at 468 (Stevens, J., concurring in part and dissenting in part) ("death penalty is qualitatively different ... and hence must be accompanied by unique safeguards"); Wainwright v. Witt, 469 U.S. 412, 463 (1985) (Brennan, J., dissenting) (citing "previously unquestioned principle" that unique safeguards necessary because death penalty is "qualitatively different"); McCleskey v. Kemp, 481 U.S. 279, 340 (1987) (Brennan, J., dissenting) ("hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death"); Atkins v. Virginia, 536 U.S. 304, 337 (2002) (Scalia, J., dissenting) (majority opinion holding it cruel and unusual to punish retarded persons with death is "pinnacle of ... death-isdifferent jurisprudence"); Ring v. Arizona, 536 U.S. 584, 605-06 (2002) ("no doubt that '[d]eath is different') (citation omitted); id. at 614 (Breyer, J., concurring in the judgment) ("Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty.").guarantee requires states to provide counsel to indigent defendants on trial for capital crime of rape); Betts v. Brady, 316 U.S. 455, 470 (1942) ("special circumstances" requiring states to provide counsel to indigent defendants include capital trials); Witherspoon v. Illinois, 391 U.S. 510, 523 n.22 (1968) (upholding special rules for jury selection in capital cases so as to exclude persons who could not impose death penalty under any circumstances).3 See cases cited supra note 1.While procedural norms are the major focus of death-isdifferent jurisprudence, the Court has also used the difference of death to impose substantive limits on uses of capital punishment that are judged excessive, and hence cruel and unusual, when used to punish certain crimes no matter what procedural safeguards are in place.See, e.g., Coker v. Georgia, 433 U.S. 584, 592 (1977) (cruel and unusual to punish crime of rape with death); Enmund v. Florida, 458 U.S. 782, 789-93 (1982) (cruel and unusual to punish felony murder with death absent showing that defendant possessed a sufficiently culpable state of mind); Thompson v. Oklahoma, 487 U.S. 815 (1988) (cruel and unusual to pronounce death upon defendant who was under 16 at the time of his crime); Atkins, 536 U.S. at 306 (cruel and unusual to execute the mentally retarded).4 See Furman, 408 U.S. at 290 (Brennan, J., concurring) ("finality of death precludes relief'); id. at 306 (Stewart, J., concurring) (death "unique in its total irrevocability"); Gregg, 428 U.S. at 187 (joint opinion of Stewart, Powell, and Stevens, JJ.) ("irrevocability"); Woodson, 428 U.S. at 305 (joint opinion of Stewart, Powell, and Stevens, JJ.) ("finality"); Spaziano, 468 U.S. at 460 n.7 ("irrevocability"); id. at 468 (Stevens, J., concurring in part and dissenting in part) ("irrevocability"); Wainwright, 469 U.S. at 463 (Brennan, J., dissenting) ("irrevocability"); Ring, 536 U.S. at 616-17 (Breyer, J., concurring in the judgment) (DNA evidence that the convictions of numerous persons on death row are unreliable is especially alarming since "death is not reversible").5 Banks v. Dretke, 540 U.S. 668 (2004) (prosecutorial misconduct); Wiggins v. Smith, 539 U.S. 510 (2003) (ineffective assistance of counsel where counsel fails to investigate the accused's background and to present mitigating evidence); Miller-El v. Cockrell, 537 U.S. 322 (2003) (ordering new hearing for death row inmate who had presented substantial prima facie evidence of unconstitutional race-based challenges to jurors in violation of Batson v. Kentucky, 476 U.S. 79 (1986)); Simmons v. South Carolina, 512 U.S. 154, 156 (1994) (error for trial court, in a case where defendant's future dangerousness was at issue, to refuse to instruct jury that under state law defendant would be ineligible for parole if sentenced to life imprisonment); Linda Greenhouse, Prosecutorial Misconduct Leads Justices to Overturn Death Sentence in Texas, N.Y.