Vol. 13 No. 2 (February 2003)
DEATH PENALTY CASES: LEADING U.S. SUPREME COURT CASES ON CAPITAL PUNISHMENT (2nd EDITION) by Barry Latzer (Editor). New York: Butterworth-Heinemann, 2002. 348 pp. Paper $29.95. ISBN: 0-7506-7594-2.
Reviewed by James R. Acker, School of Criminal Justice, University at Albany. acker@albany.edu.
Professor Barry Latzer, of the John Jay College of Criminal Justice and the Graduate Center, City University of New York, has produced a second edition of DEATH PENALTY CASES, published four years after the original (1998) edition. The volume remains a casebook in essential form and content. In an introductory chapter, Latzer provides a brief history of death penalty laws and practice, sketches the several stages comprising contemporary capital cases from charging through clemency, and offers a nonargumentative summary of a number of potentially contentious topics including the penological justifications offered in support of the death penalty, the risk of executing innocent persons, and racial disparities in the administration of capital punishment. One appendix marshals various statistics about murder, death rows, executions, and public opinion, while another presents death penalty law provisions from select jurisdictions.
The core of the book, nearly 300 of its 348 pages, consists of the edited decisions of 25 significant United States Supreme Court death penalty cases. The cases are preceded by Latzer’s brief introductory and explanatory comments, and thereafter the opinions speak for themselves, just as one would expect from a casebook. The book has no polemics, agendas, or legerdemain beyond what can be found in the justices’ own writings. There is truth in advertising here. Simply put, DEATH PENALTY CASES is about death penalty cases, necessarily shorter and less complete than in their original version, but cases nonetheless.
Four decisions have been added to the second edition that were not included in the first. Only one of these cases, ATKINS v. VIRGINIA (2002), is new in the sense that it was decided after 1998. Otherwise, Latzer has usefully supplemented the first edition by incorporating JUREK v. TEXAS (1976), in which the justices upheld the capital sentencing statute enacted in Texas in the immediate wake of FURMAN v. GEORGIA (1972), which had declared existing death penalty laws unconstitutional. The unorthodox Texas law, which has resulted in nearly 300 executions in the post-FURMAN era, or over three times as many as second place Virginia, which has 87 executions to its credit (Death Penalty Information Center 2003), is famous for predicating death-penalty eligibility on predictions of the offender’s future dangerousness. Such predictions are notoriously unreliable (BAREFOOT v. ESTELLE 1983, Blackmun, J., dissenting; Sorensen and Marquart 1998), although quite satisfactory in the eyes of a few psychiatrists (Rosenbaum 1990), Texas lawmakers, and the United States Supreme Court.
BAREFOOT v. ESTELLE (1983) might have been a better choice for illustrating the controversial peculiarities of the Texas statute, and the law has been revised in other respects since the Court decided both JUREK and BAREFOOT (see PENRY v. JOHNSON 2001). Nevertheless, JUREK’s addition is an asset to the second edition.
Also strengthening the second edition is the inclusion of HERRERA v. COLLINS (1993), the important case in which the justices wrestled with the decision as to whether a state prisoner’s claim of actual innocence in a capital case, standing alone, is cognizable in federal court on a petition for a writ of habeas corpus. The last “new” case added to the second edition is SIMMONS v. SOUTH CAROLINA (1994), the first occasion on which the Court considered whether a jury must be instructed that a “life” sentence actually means life imprisonment without the possibility of parole (LWOP) when LWOP in fact is the alternative choice to a sentence of death.
In ATKINS (2002), the Court noted recent legislative and other trends reflecting society’s “evolving standards of decency” and ruled that the Eighth Amendment precludes capital punishment for mentally retarded offenders. In so doing, the justices overruled PENRY v. LYNAUGH (1989), which had left to individual legislatures and juries the task of deciding whether it is ever appropriate to punish mentally retarded murderers with death. ATKINS is an important ruling with possible implications for other areas of law, including whether an analogous constitutional prohibition should be recognized for offenders younger than age 18. It was a good choice for inclusion in the second edition of Latzer’s book.
Somewhat curiously, the Supreme Court’s other recent prominent death penalty case, RING v. ARIZONA (2002), was not presented in the new edition of DEATH PENALTY CASES. The justices held in RING that the Sixth Amendment requires juries, not judges, to find the essential facts on which capital sentences are based. The ruling means, at a minimum, that the aggravating factors necessary to support a sentence of death must be proven to the satisfaction of juries. Latzer correctly notes (p. 215) that RING does [el1]not hold that judges can never make the ultimate decision about whether a convicted murderer should live or die, as they did in nine jurisdictions prior to the decision. By its terms, RING is more limited. Nevertheless, it seems inevitable that the Court soon will be asked to rule whether jury sentencing is constitutionally required in capital cases.
RING is already being used in some jurisdictions to bolster other arguments, such as whether grand juries must review the sufficiency of evidence in support of aggravating circumstances, and not just the elements of murder, as they consider true bills of indictment in potential capital cases. In lieu of presenting RING, the second edition of Latzer’s book retains SPAZIANO v. FLORIDA (1984), in which the Supreme Court expressly approved of Florida’s practice of allowing judges to override a jury’s advisory sentencing verdict in death penalty cases. SPAZIANO allows discussion of the wisdom and the constitutionality of judge versus jury sentencing in capital cases, although RING may have been a more timely choice.
Otherwise, not much has changed since the book’s first edition, and there is little more to be added to my earlier review of the original volume (Acker 1998). DEATH PENALTY CASES remains a compact and eminently useful collection of leading United States Supreme Court cases on the subject of capital punishment. Instructors teaching death penalty classes who are looking for more comprehensive casebooks should consult Coyne and Entzeroth (2001), which also has recently been updated and published as a second edition. Because Latzer’s DEATH PENALTY CASES is true to its title and focuses narrowly on death penalty cases, instructors who adopt the book for class purposes almost certainly will want to complement it with other readings that cover empirical, historical, philosophical, and other non-doctrinal aspects of capital punishment. However, those looking to introduce their students to the major Supreme Court decisions addressing death penalty issues over the last three decades will find Latzer’s second edition to be even handier and more useful than the first edition.
REFERENCES
Acker, James R. 1998. Book Review. “Death Penalty Cases: Leading U.S. Supreme Court Cases on Capital Punishment, by Barry Latzer (Editor).” 8 THE LAW AND POLITICS BOOK REVIEW 447-449.
Coyne, Randall and Lyn Entzeroth (eds.). 2001. CAPITAL PUNISHMENT AND THE JUDICIAL PROCESS. SECOND EDITION. Durham, NC: Carolina Academic Press.
Death Penalty Information Center. 2003. “Number of Executions by State Since 1976.” Available at: http://www.deathpenaltyinfo.org/dpicreg.html.
Sorensen, Jon and James Marquart. 1998. “Future Dangerousness and Incapacitation.” In James R. Acker, Robert M. Bohm and Charles S. Lanier (eds.), AMERICA’S EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION. Pp. 183-199. Durham, NC: Carolina Academic Press.
Rosenbaum, Richard. 1990. “Travels With Doctor Death. VANITY FAIR (May) 141-147, 161-174.
ATKINS v. VIRGINIA, 536 U.S. 584 (2002).
BAREFOOT v. ESTELLE, 463 U.S. 880 (1983).
FURMAN v. GEORGIA, 408 U.S. 238 (1972).
HERRERA v. COLLINS, 506 U.S. 390 (1993).
JUREK v. TEXAS, 428 U.S. 262 (1976).
PENRY v. JOHNSON, 532 U.S. 782 (2001).
PENRY v. LYNAUGH, 492 U.S. 302 (1989).
RING v. ARIZONA, 536 U.S. 584 (2002).
SIMMONS v. SOUTH CAROLINA, 512 U.S. 154 (1994).
SPAZIANO v. FLORIDA, 468 U.S. 447 (1984).
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Copyright 2003 by the author, James R. Acker.