How Resource Disparity Makes the Death Penalty Unconstitutional: An Eighth Amendment Argument Against Structurally Imbalanced Capital Trials

Abstract

Currently, attorneys utilize Sixth Amendment ineffective assistance of counsel claims as the method for challenging inadequate capital defense representation. This article argues that such challenges should be brought under the Eighth Amendment as well, as the Eighth Amendment provides the opportunity to challenge death penalty systems as a whole, whereas Sixth Amendment challenges focus only on the death sentences of individual defendants. The Eighth Amendment demands that death penalty schemes impose death sentences in a reliable and non-arbitrary manner. In order to meet the constitutionally mandated reliability, current death penalty jurisprudence requires a jury to make an individualized assessment of the particular defendant, together with the specifics of the crime, before a death sentence can be imposed. To make the individualized assessment, the jury considers evidence of mitigation presented by the defense and evidence of aggravation presented by the prosecution during the sentencing phase of a capital trial. In many parts of the United States, there exist substantial disparities between the resources enjoyed by those prosecuting capital defendants and those defending them. The State in those areas is better equipped to investigate and present evidence of aggravation than the defendant is to present evidence of mitigation. Juries * J.D. Candidate, University of California, Berkeley, 2013. Many thanks to Shana Heller, Jake Rasch-Chabot, Tracy Krause, Chris Heckman, and the rest of the Berkeley Journal of Criminal Law team for their very helpful edits and comments. Thanks also to Professor Lis Semel, who provided crucial feedback, and to Cliff Gardner and Larry Gibbs, for teaching a great class and encouraging students to learn and care about these issues. 1 Isaacson: How Resource Disparity Makes the Death Penalty Unconstitutional: Published by Berkeley Law Scholarship Repository, 2012