NOT-SO-HARMLESS ERROR: A HIGHER STANDARD FOR MITIGATION ERRORS ON CAPITAL HABEAS REVIEW
Ryan C. Thomas
Abstract: This Comment looks at how federal courts handle mitigation errors during the penalty phase of capital punishment cases on habeas corpus review; it argues that the United States Supreme Court should expressly adopt the Chapman "harmless beyond a reasonable doubt" standard rather than the Brecht "substantial and injurious effect" standard. The heightened stakes of capital sentencing dictate that a higher standard of review should apply. The Court has yet to rule on this matter, and the United States Courts of Appeals cannot agree upon which standard to apply.
Currently, a lopsided circuit split exists regarding whether harmless error review applies to mitigation errors, and if so, what standard should apply. While the Court has yet to decide this issue, it has dealt with harmless error review in non-capital cases. The Chapman harmless error standard, promulgated by the Court in 1967, requires that a state must prove that any constitutional errors were harmless beyond a reasonable doubt. In 1993, the Brecht Court found the Chapman standard too onerous for collateral attacks and determined that a lower standard was necessary: during collateral attacks, the defendant must show that the error had a substantial and injurious effect upon determining the jury's verdict. Chapman placed the burden upon the State; Brecht placed the burden upon the defendant.
This Comment argues that the higher Chapman standard should apply to collateral attacks in capital habeas cases because of the possibility of a total deprivation of one's life and liberty. The Court has before determined that "death is different," and in keeping with that sentiment, the Court should adopt an error standard that similarly acknowledges the difference between life and death.
INTRODUCTION
This Comment addresses which harmless error standard should be used when analyzing mitigation errors on habeas corpus review. Habeas corpus review occurs when a defendant exhausts his or her state appeals and subsequently seeks the ancient writ of habeas corpus(fn1) as codified in 28 U.S.C. § 2254.(fn2)
This Comment examines cases where the defendant claims that the state trial court violated his or her constitutional rights during sentencing by committing mitigation error. During the sentencing phase of a capital punishment trial the defendant may present mitigation evidence-any relevant information regarding the defendant's person and history-that may cause a juror to deliver a sentence less than death.(fn3) Mitigation errors often take one of two forms: Lockett error or Penry error. Lockett error occurs when the court denies the defendant the chance to present any relevant evidence that may cause a jury to deliver a sentence less than death.(fn4) Mitigation may include evidence of a difficult family history, mental disturbance, healthy adjustment to life in prison, emotional disturbance, or false imprisonment.(fn5) In fact, the United States Supreme Court has said that virtually no limits are placed upon what evidence a capital defendant may offer to mitigate his or her sentence.(fn6) Penry error occurs when the jury is precluded from giving full meaning and effect to the defendant's evidence during deliberations and in making their sentence, usually through poorly written jury instructions.(fn7) The wording of these jury questions may preclude full consideration of mitigation evidence, resulting in Penry error.(fn8) Throughout this Comment, the term "mitigation error" will be used in reference to errors that preclude core elements of mitigation evidence,(fn9) namely Lockett error and Penry error.(fn10)
In order to logically and effectively show why the United States Supreme Court should adopt the "harmless beyond a reasonable doubt" standard articulated in Chapman v. California,(fn11) this Comment proceeds in six parts. Part I discusses the general background of capital punishment cases. Part II looks at the foundational capital sentencing mitigation cases. Part III examines three key ingredients in capital habeas harmless error review. Part IV surveys the circuit split. Part V argues that the Court should reject the Brecht standard and adopt the Chapman standard for habeas review of mitigation errors. Finally, part VI considers the impact of mitigation error upon jurors.
I. HOW DIFFERENT IS DEATH? AN OVERVIEW OF A CAPITAL PUNISHMENT CASE
The 1970s was a tumultuous era for this nation's capital punishment jurisprudence: 1972 saw a de facto moratorium on the death penalty initiated by the Court in Furman v. Georgia,(fn12) followed by its resuscitation a short four years later in Gregg v. Georgia.(fn13) Only two years after Gregg, the Court decided another landmark case that protected a capital defendant's right to present mitigation evidence: Lockett v. Ohio.(fn14) In Lockett the Court offered a surprising-and prophetic-sliver of self-deprecation: "The signals from this Court have not . . . always been easy to decipher. The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance."(fn15) Ironically, Chief Justice Burger wrote these words in a plurality opinion that was followed by four separate opinions.(fn16) Unfortunately, the Court's capital punishment jurisprudence remains foggy and complex, providing fodder for circuit splits and scholarship.
When the United States Supreme Court discussed the idea that death is different in Furman v. Georgia,(fn17) it began a conversation in United States jurisprudence that philosophers had long been debating.(fn18) The moral, intellectual, and legal battle continues in the nation's discourse-a quick Internet news search reveals hundreds of articles discussing various aspects of the complex topic.(fn19) Questions surrounding the cost and efficacy of capital punishment abound.(fn20) Death penalty cases play by both substantively and procedurally different rules than non-capital cases. The procedural differences are readily apparent in two significant ways: the qualification of the jury(fn21) and the bifurcation of the trial into two phases.(fn22)
A. The Procedural Posture of Capital Cases: Death Qualification and Trial Bifurcation
In order to set the table for this discussion, a high-level overview of a capital trial is in order. Such an attempt at clarity is inherently plagued from the outset, however, because each state has a unique statutory scheme. This background, then, will provide only a 30,000-foot view of a landscape that could be mapped by the inch; it looks first at (1) the death qualification of a capital jury and (2) the bifurcation of capital cases.
1. The Death Qualification of Juries: Removing Jurors at the Extremes
In 1986, the United States Supreme Court gave states permission to qualify juries by removing jurors who categorically opposed the death penalty.(fn23) In a typical jury trial, a large number of potential jurors are called to the courthouse.(fn24) While each state's process varies in detail, the basic methodology is the same: counsel for each party questions potential jurors and exercises its peremptory challenges(fn25) and challenges for cause.(fn26) While states may increase the number of peremptory challenges available during capital cases,(fn27) the process differs from noncapital cases in one significant way: each juror may be qualified, meaning that they must be willing to consider sentencing the defendant to death.(fn28) Let that statement soak in for a moment. Seated jurors certainly will be free to make whatever choice they deem most fair after the sentencing phase; but at voir dire, all jurors who emphatically oppose the death penalty are removed, as are those who categorically think that the death penalty should be imposed.(fn29) This selection process is aimed at removing the jurors at the extremes, hopefully creating a jury that will give meaningful effect to all of the aggravating and mitigating circumstances presented during the trial. However, the process raises some questions surrounding whether the defendant is actually tried by a jury of his or her peers; such questions exceed the scope of this Comment.
2. A Two-Step Dance: The Bifurcation of the Capital Trial
The second major difference in death penalty cases is the bifurcated structure. Death penalty cases take the form of two distinct trials.(fn30) In part one-the guilt phase-the elements of the crime must be proven beyond a reasonable doubt.(fn31) Death penalty cases and non-death penalty cases are substantively the same during the guilt phase. If guilt is established, the death penalty trial moves to part two. In part two-the sentencing, or penalty, phase-the prosecution attempts to convince the jury that the defendant should receive the death penalty due to the aggravating factors in the case, while the defense will present mitigating evidence in order to convince the jury that the defendant deserves a sentence less than death.(fn32) This second phase distinguishes capital cases from noncapital cases.
Non-capital criminal cases address the sentence in a separate hearing once guilt has been established; these sentencing hearings must occur "without unnecessary delay."(fn33) In federal (and some state) cases, series of reports and memoranda will be written...
