Capital Punishment in the U.S., i.e. a cool legal topic at last.

After boring you with some technical constructs, here's the time for some controversial and interesting topic: death penalty in the U.S.A.

The spark was given me by this case we analyzed in class: State of Maryland vs. Kirk Bloodsworth (http://en.wikipedia.org/wiki/Kirk_Bloodsworth). In 1985, Mr. Bloodsworth was convicted for murder, rape and sexual offense, and sentenced to death by the Circuit Court for Baltimore County. After 10 years in the death row, he walked out of prison as DNA tests exonerated him from committing the crime . He has become the first person in the U.S. to be sentenced to death and then absolved by DNA evidence, and the strongest advocate to end the death penalty in Maryland.

But don't get too excited about this topic, for we'll try to analyze it only by a legal perspective.

First of all, the comparison: Italy, being part of the EU, abides by the Article 2 of the Charter of fundamental rights of the European Union that expressly prohibits the use of capital punishment.

Anyhow, death penalty in Italy was first banned in 1889 under the “Zanardelli” Penal Code, with the exception of regicide and high treason. After being officially re- introduced by Benito Mussolini during his dictatorship (1926- 1945), it was definitively abolished by the democratic Constitution in 1948. The last execution in Italy took place on March 4, 1945 in Turin.

As for the U.S., death penalty is part of the cultural legacy brought by the first settlers from Great Britain, were this practice was generally used to punish capital crimes. Capital punishment and death penalties laws varied from colony to colony and from state to state; that's why there's a record of states with long tenure of no death penalty, like Michigan (the first state to abolish it in 1846), Wisconsin, Rhode Island, Main, Vermont, Iowa and Minnesota, against other states that still largely use this punishment (i.e. Texas).

Illinois abolished it only in 2011, but the last execution dates back to 1999.

At a constitutional level, capital punishment finds a limit in the Eight Amendment, which expressly provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”; although the Supreme Court never ruled that death penalty was per se unconstitutional, from 1972 to 1976 it has been temporary suspended after the Court itself found that death penalty was imposed in an unconstitutional manner (Fruman vs. Georgia 408 U.S. 238). The practice resumed in 1976, after the Supreme Court ruling in the case Gregg vs. Georgia 153).

But how the legal administration of death penalty is actually performed? We can say that it is a complex process and generally involves 5 main steps:

1. sentencing;
2. direct review;
3. state collateral review;
4. federal habeas corpus;
5. the Section 1983 challenge.

If a convicted is sentenced to death at a trial level (1), the case then goes into a direct review (2). This second phase is described by the title 18, §3595, of the U.S. Code (3595) and is a typical legal appeal: the appellate court examines the evidence and the law applied by the lower court and then decides if the decision was sound or not. Three are the possible results: (i) the appellate court upholds the decision; (ii) if it is found any legal error, the court will reverse the judgment or nullifies the sentence and orders a new penal hearing; (iii) if the appellate court finds that no reasonable juror could find the defendant eligible for the death penalty- a rarity -then it will order the defendant acquitted, or not guilty, of the crime for which he/she was given the death penalty, and order him sentenced to the next most severe punishment for which the offense is eligible. Generally, about 60 % of the cases survive this level of censure.

At this point, if the direct review confirms the death sentence, it could be considered final. Nevertheless, there are some supplemental remedies to attack the judgement, though less familiar than a typical appeal: these are the so called collateral reviews (3), a way for upsetting judgements that otherwise have become final. If the prisoner received his death sentence in a state-level trial (as usual), the first step in collateral review is state collateral review [if the case is a federal death penalty case, it proceeds immediately from direct review to federal habeas corpus (4)]. Although all states have some type of collateral review, the process varies widely from state to state. Generally we can say that this collateral proceeding has the main purpose of giving the convicted the possibility of challenging the sentence on grounds that could have never been raised at the trial or direct review (similarly to many rimedi eccezionali that may be found in the Italian system). It is estimated that about only 6% of the death sentences are overturned by a a collateral state review.

If a sentence is affirmed by a state collateral review, nevertheless a prisoner's hopes are still alive: one may file for federal habeas corpus (4), which is a unique type of lawsuit that can be brought in federal courts.

Federal habeas corpus is a type of collateral review the main purpose of which is to guarantee and ensure that state courts, through the process of direct review and collateral review (2-3), have operated in respect of the prisoner's constitutional rights. Convicted and prisoners con use this remedy also to bring forth new pieces of evidence to prove that they are innocent for the crime. Although being narrow in theory, about 21% of death penalty cases are reversed through federal habeas corpus (Eric M. Freedman, "Giarratano is a Scarecrow: The Right to Counsel in State Postconviction Proceedings" 91 Cornell L. Rev. 1079, 1097 (2006).

Although a person is allowed to file only one suit for habeas corpus in federal court, in recent times prisoners have put off their execution by applying a further and final round of federal litigation, using the Civil Rights Act of 1871 (U.S. Code, title 42, ¶1983), which allows people to bring lawsuits against state actors to protect their federal constitutional and statutory rights (5). Traditionally, this remedy was of limited use because the Supreme Court has held that habeas corpus, and not § 1983, was the only federal vehicle for a prisoner to attack a state capital punishment. However, with the 2006 Hill vs. McDonough case, the Supreme Court approved the use of the §1983 as a avenue for challenging a state's method of execution as cruel and unusual punishment in violation of the Eight Amendment of the Constitution (547 US 573). This special procedure has been criticized by lower courts, which have often blamed it as a claim to delay the execution. Anyway, after the decision Blaze vs. Rees, the court has narrowed the opportunity of relief through §1983 (5439; reuters)

To recap, the procedure by which a capital sentence is actually executed is long and complex, and a prisoner is given all the possible vehicles to challenge and attack a death sentence. Linking with the case of Mr. Bloodsworth mentioned at the beginning, this analysis may also answer the questions “why it took 10 years to prove he was innocent?” and “why prisoners spend tens of years in the death row before being executed?”.

Although we tried analyzing this delicate topic under a legal point of view, nevertheless some questions seem to raise automatically: is it worthwhile for the State to maintain capital punishment as a public chastisement , and to kill a man after 10\15 years of imprisonment? Does death penalty really work as a general deterrent ? The answers may considerably vary according to the cultural and judicial background of those asked, and ethical considerations go beyond the purpose of this post. Nonetheless, we can gladly say that Mr. Bloodsworth won his cause and Maryland repealed death penalty on March 2013.

32 more States to go.

P.s. A little legal detail: Maryland's abolition of the death penalty is not retroactive; but we can discuss about retroactivity in the next post!