CAPITAL PUNISHMENTCAPITAL PUNISHMENTCAPITAL PUNISHMENTCAPITAL PUNISHMENTCAPITAL PUNISHMENT
I. CONSTITUTIONALITY
A. Federal Standards
In 1972, the United States Supreme Court
invalidated capital punishment statutes around the
country because the existing practice of absolute jury
discretion in capital sentencing resulted in arbitrary and
discriminatory infliction of the death penalty. Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972).
In response, states enacted a variety of statutes in an
attempt to satisfy the Supreme Court’s requirements
that channeled discretion exist in death penalty schemes.
In Gregg v Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976), the Supreme Court upheld
Georgia’s statute against constitutional attack. The
Court found that the procedure set forth in the statute,
including separate guilt and penalty phases, a
requirement that the State prove at least one aggravating
factor beyond a reasonable doubt before death could be
imposed and the automatic appellate review of all death
sentences by the Georgia Supreme Court, provided
objective standards to guard against the arbitrary
imposition of the death penalty. Id. at 196-98, 96 S.Ct.
at 2936-37, 49 L.Ed.2d 859.
Similarly, in Jurek v. Texas, 428 U.S. 262, 273-75,
96 S.Ct. 2950, 2957-58, 49 L.Ed.2d 929 (1976), the
Supreme Court upheld as constitutional a scheme which
requires a jury which convicts a defendant of capital
murder to answer a series of questions before imposing a
death sentence.
In contrast, the Court consistently has rejected as
unconstitutional statutory schemes which mandate a
death penalty upon conviction of murder. Sumner v.
Shuman, 483 U.S. 66, 77, 107 S.Ct. 2716, 2724, 97
L.Ed.2d 56 (1987) (statute which mandates death
penalty for prison inmate convicted of murder while
serving sentence of life without parole is unconstitutional
because it does not allow individualized consideration of
defendant); Roberts v. Louisiana, 428 U.S. 325, 333-34,
96 S.Ct. 3001, 3005-06, 49 L.Ed.2d 974 (1976)
(statute unconstitutional because it mandated death
once jury convicted defendant of first degree murder);
Woodson v. North Carolina, 428 U.S. 280, 291-96, 96
S.Ct. 2978, 2985-87, 49 L.Ed.2d 944 (1976) (same).
Moreover, the Court has ruled that a statute which
permits the death penalty to be imposed for a crime less
than death is unconstitutionally disproportionate, Coker
v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53
L.Ed.2d 982 (1977) (death sentence for rape), as is a
statute which permits the imposition of the death
penalty upon a person less than 16 years of age.
Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687,
101 L.Ed.2d 702 (1988); Stanford v. Kentucky, 492 U.S.
361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989).A defendant must be given notice that the State is
going to seek the death sentence. Lankford v. Idaho, 500
U.S. 110, 119-20, 111 S.Ct. 1723, 1729-30, 114
L.Ed.2d 173 (1991) (due process violated when judge
sentenced defendant to death even though State had filed
pretrial notice that it was not seeking the death penalty).To be constitutional, a death penalty scheme must
require the trier of fact to convict the defendant of
murder, which may include felony murder. A death
sentence based upon a felony murder conviction is a
disproportionate penalty, however, where the individual
did not actually commit the homicidal act unless he or
she had the intent to participate in or facilitate a murder.
Enmund v. Florida, 458 U.S. 782, 798-99, 102 S.Ct.
3368, 3377, 73 L.Ed.2d 1140 (1982), or unless his or
her participation in the felony was major and he or she
demonstrated reckless disregard for the value of human
life implicit in knowingly engaging in criminal activities
known to carry a grave risk of death. Tison v. Arizona, 481
U.S. 137, 157-58, 107 S.Ct. 1676, 1688, 95 L.Ed.2d
127 (1987).The trier of fact must be required to find at least one
aggravating circumstance or its equivalent, either at the
guilt phase or at the penalty phase. The aggravating
circumstance may be contained in the definition of the
crime or in a separate aggravating factor. Lowenfeld v.
Phelps, 484 U.S. 231, 244-46, 108 S.Ct. 546, 554-55,
98 L.Ed.2d 568 (1988) (death penalty may be imposed
under statute in which aggravating factor found at
sentencing phase is identical to an element of capital
murder); State v. Ramseur, 106 N.J. 123 (1987) (adopts
Lowenfeld). The aggravating circumstance must meet
two requirements: it cannot apply to every defendant
convicted of murder but only to a “subclass” of murderer,
Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534,
1542, 123 L.Ed.2d 188 (1993) (if sentencer reasonably
could conclude that aggravating circumstance applies to
every defendant eligible for death penalty, then
aggravating circumstance is unconstitutional), and it