Federal Constitutional Rules Governing Penalty Phase Procedure

The United States Supreme Court has held that to satisfy the Cruel and Unusual Punishment Clause of the Eighth Amendment to the national Constitution, a State’s capital sentencing procedure must meet two basic requirements. It must provide some process for “meaningfully narrowing” the class of persons convicted of murder, so that the sentencer in each case decides whether the convicted defendant is within a clearly described subclass eligible for the death penalty; and it must allow the sentencer to consider any evidence that the defendant brings forward in mitigation of the sentence of death. In most States, the “aggravating circumstances” findings satisfy the first requirement and the “mitigating circumstances” findings – together with the balancing of aggravating and mitigating circumstances -- satisfy the second requirement. On this reasoning, the U.S. Supreme Court upheld the constitutionality of Georgia’s capital sentencing statute in Gregg v. Georgia in 1976.

On the same day, the Court also upheld the constitutionality of the Texas procedure in Jurek v. Texas, saying that the Eighth Amendment narrowing requirement was satisfied by Texas’s restriction of death eligibility to the subclasses of “capital murder” which the jury considers at the guilt/innocence stage (as well as the jury’s consideration of the first two Texas “special issues” at the penalty stage), and that the second Texas “special issue” – future dangerousness – would ordinarily allow the jury to consider a defendant’s mitigating evidence. In 1989, after Graham’s trial, the Supreme Court recognized that some kinds of mitigating evidence offered by Texas capital defendants (such as mental deficiency and subjection to childhood abuse) could not be fairly considered in connection with the future-dangerousness special issue and that the Texas procedure was unconstitutional as to these defendants. In 1991, the Texas statute was amended to correct this defect by providing that sentencing jurors could consider all of a capital defendant’s mitigating evidence as the basis for a life sentence, no matter how they answered the three “special issues.” But these changes in the law came after Graham’s trial and were held not to apply to him because they were (in legal terminology) “not retroactive.”