Between death and a hard place: Hopkins v. Reeves and the 'stark choice' between capital conviction and outright acquittal.

• Jurisdiction: United States
• Date: 22 September 2000
• Author: Barta, Peter A.

If the decision to kill is indeed fraught with personal moral intensity, arousing the sentencer's most intense fears and anxieties, then it may be a harmful illusion for the juror to believe that he or she is choiceless.(1)

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense ... treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.(2)

1. INTRODUCTION

   When the United States Supreme Court allowed the death penalty to resume in 1976,(3) it did so by expressing the belief that new procedural safeguards enacted by the states would cure the rampant discrimination and arbitrary decision-making which had caused the Court to declare the administration of capital punishment unconstitutional only four years earlier in Furman v. Georgia.(4) The legislative guidelines approved by the Court in Gregg focused primarily on guiding the decision-making process of capital juries, from specifying the factors to be considered in sentencing to the adoption of a bifurcated trial process designed to minimize the infusion of prejudicial or irrelevant factors into the jury's guilt determination.(5) Because the death penalty was qualitatively different from other punishments, both in its harshness and its irrevocability, the Court declared that it would be subject to heightened judicial review.(6) The death penalty could only pass constitutional muster if it comported with the highest standards of due process, equal protection, and reliable decision-making.(7) As they had with desegregation, the federal courts would monitor the states' administration of capital punishment to ensure that it did not veer from these core principles.

   Unfortunately, this era of careful oversight did not last. "Death is different"(8) soon gave way to "[l]et's get on with it."(9) During the past two decades, the Supreme Court has abdicated more and more of the supervisory power over the administration of the death penalty that it assumed in Furman. The Rehnquist Court has accelerated this process, as questions of basic fairness and heightened scrutiny for life and death decisions have given way to enhanced concern over state sovereignty and deference to legislative decision-making.(10) As pressure has mounted "to move from merely sentencing people to death and then warehousing them to carrying out executions by reducing procedural protections and expediting the legal process,"(11) this "deregulation of death"(12) has led to the erosion of some of the most fundamental protections afforded those facing the threat of execution.(13) In the words of Bryan Stevenson, director of the Equal Justice Initiative of Alabama, the Court has seemingly adopted the notion that "due process, equal protection of the law and reliability in criminal case adjudications are not nearly as important as finality when a state wants to execute someone."(14)

   The erosion of the constitutional safeguards designed to protect the rights of capital defendants continued with the Supreme Court's recent decision in Hopkins v. Reeves.(15) At stake was the continuing vitality of the Court's Beck doctrine--the proposition that the death penalty could not be imposed under a scheme that prevented the charging of a capital jury with lesser included offenses and thus required an all-or-nothing choice between execution and acquittal.(16) The case of Randy Reeves, a Native American. Nebraska man charged with a brutal double murder, led to the Court's first pronouncement on Beck in seven years. Under the Nebraska courts' interpretation of state law, the capital crime with which Reeves was charged, felony murder, had no chargeable lesser included offenses. Reeves' jury was thus compelled to make the "stark choice"(17) between convicting him of capital murder or releasing him. They chose the former, and Reeves was condemned to die.

   This Note functions as both a historical overview of the Beck doctrine's development and as a critical analysis of the Supreme Court's 8-1 decision upholding Reeves' conviction and death sentence.(18) Part II will trace the evolution of the Supreme Court's Beck doctrine, from the enunciation of the core principles of capital jurisprudence to the refinement of guidelines regarding the charging of lesser included offenses in death penalty cases. Part III will detail the facts, legal arguments and court opinions underlying Reeves. Part IV will argue that the Supreme Court erred in denying Reeves' claim that an aberrant exception to Nebraska state law on the charging of lesser included offenses resulted in his jury being confronted with a constitutionally impermissible choice between convicting him of a capital crime and acquitting him outright. Part V will marshal empirical and sociological data to demonstrate the importance of the Beck doctrine in preventing both unwarranted acquittals and, more often, unjustified convictions, both arising out of a sentencing scheme which leads the jury to feel that it has no other choice. The Note will conclude that the Supreme Court's decision amounts to a de facto abandonment of the Beck doctrine, casting a significant shadow of doubt upon the reliability of capital sentencing in Nebraska and other jurisdictions employing similar statutory schemes.

2. EVOLUTION OF THE BECK DOCTRINE

   1. Furman v. Georgia (1972)

      Although the American death penalty was born with the hanging of George Kendall in Jamestown Colony, Virginia in 1608, its legality was not seriously brought into question until more than 250 years later.(19) Riding on a tide of social change, the movement to abolish the death penalty picked up record levels of momentum in the 1960s, coinciding with the first legal challenges aimed at outlawing the death penalty as an institution. Organizations such as the NAACP Legal Defense Fund (LDF) sponsored research demonstrating the prevalence of racial discrimination, jury bias, and arbitrary application in the administration of the death penalty. Using the results of these ground-breaking studies, and assisted by lawyers from the LDF and the American Civil Liberties Union (ACLU), a growing number of capital defendants turned to the federal courts, challenging the constitutionality of state death penalty laws.(20) Executions dropped steadily from the 1950s through 1968, when a four year court-imposed moratorium on executions began in anticipation of several key cases before the Supreme Court expected to yield a ruling on the constitutionality of the death penalty.(21)

      The Court's subsequent landmark decision in Furman v. Georgia(22) marked the beginning of modern capital penalty jurisprudence.(23) It was at the same time a definitive statement and an exercise in judicial ambiguity. The Court issued a brief per curiam opinion, holding that the imposition of the death penalty, as applied, violated the Eighth and Fourteenth(24) Amendments.(25) The 5-4 decision, the longest in the Court's storied history, was made up of nine separate opinions. The five separate concurrences making up the fractured majority established that, at the very least, the Constitution prohibited the "`arbitrary and capricious' imposition of the death penalty."(26) Because capital sentencing statutes contained no guidelines for determining which defendants were condemned to die, sentences of death were found to be "wantonly and freakishly imposed."(27) As the death penalty was imposed in only a fraction of the cases where it was available, "the conclusion [was] virtually inescapable that it [was] being inflicted arbitrarily. Indeed, it smack[ed] of little more than a lottery system."(28)

      Significantly, the Court's opinion did not reflect the view that capital punishment per se constitutes cruel and unusual punishment. Only Justices Marshall and Brennan concluded that the death penalty was, in all cases, unconstitutional.(29) Instead, the plurality condemned the process of death sentencing, not the result.(30) Thus, while it struck down every capital punishment statute then in effect,(31) the Court's decision did not permanently abolish the death penalty. In effect, it challenged the states to build a "better" death penalty: if state legislatures could draft death penalty statutes without the constitutional infirmities identified by the majority, they would be upheld.

      In order to withstand constitutional scrutiny, such a statute had to provide for the "channeling and limiting" of the "sentencer's discretion in imposing the death penalty" to minimize the risk of arbitrary and capricious decision-making. States wishing to maintain capital punishment had to provide the sentencer with "clear and objective standards" which furnish "specific and detailed guidance" as to the proper application of the ultimate penalty; in this way, it was hoped, legislative standards would serve to "make rationally reviewable the process for imposing a sentence of death."(32)

      The states rose to the challenge. Within eighteen months of the Furman decision, nearly thirty states had reenacted the death penalty.(33) The new statutes were specifically crafted to avoid the procedural pitfalls identified by the Court. Some states enacted mandatory death penalty statutes intended to eliminate abuses in sentencing by scrapping jury discretion altogether; others adopted detailed sentencing guidelines, typically involving enumerated "aggravating" and "mitigating" factors to be considered by capital juries "in making their sentencing decisions."(34) Constitutional challenges to these new statutes slowly began making their way through the state courts.

   2. Keeble v. United States (1973)

      The Beck doctrine arose out of a case involving the Court's interpretation of an obscure federal criminal statute, the Major Crimes Act of 1885 which granted the...