Tennessee's death penalty: An overview of the procedural safeguards

University of Memphis Law Review, The, Summer 2001 by Davis, Lee, Hoss, Bryan

I. INTRODUCTION

Historically, in the United States, there have been five methods of carrying out the death penalty once a jury has convicted an individual and returned with the ultimate penalty - death. Current methods include: (i) lethal injection; (ii) electrocution; (iii) gas chamber; (iv) hanging; and (v) firing squad.1 Thirty-four states, as well as the United States Military Court and Federal Government, have legislation permitting lethal injection.2 Ten states have legislation permitting electrocution.3 Five states have legislation permitting use of the gas chamber.4 Three states have legislation permitting hangings, and three states have legislation that permit the use of a firing squads In an effort to condemn the use of execution in the United States as inhumane, opponents of the death penalty cite various concerns.

The Tennessee Court of Criminal Appeals recently addressed the concerns expressed by opponents of the death penalty. The court stated, "Capital punishment is an expression of society's moral

outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs."6

It is understandable why Amnesty International and related groups have such a deep opposition to the government's use of the death penalty.7 This ultimate penalty is final, and any error committed is irreversible. Notwithstanding these concerns, the question is whether the people of a state, e.g., Tennessee, have a legitimate interest in having the will of the people, as articulated through their legislature, followed. Specifically, where death penalty legislation has been tested in court and found to be constitutional, do the people have the right to see this legislation carried out in the court system? This article will first identify the procedural safeguards that are in place to ensure that only those who commit the most heinous of crimes are eligible for the death penalty. These safeguards are triggered shortly after the discovery of the offense and extend to the first direct review of the death sentence by the Supreme Court of Tennessee. Second, this article will analyze select statutory aggravating circumstances to determine whether only the most heinous of crimes committed by the worst murderers are punished by the death penalty. Third, this article will discuss the broad scope of several select statutory mitigating circumstances that may be raised by a death penalty defendant at a sentencing hearing. Finally, this article suggests that Tennessee death penalty supporters should seek adoption of a "heinous, atrocious, and cruel" aggravating factor that is drafted in such a way that the factor may withstand constitutional attack on appeal!

Before we examine this legislation, it is helpful to review

available statistics concerning the number of murders committed in the United States and identify those individuals who find themselves faced with this ultimate penalty. Between 1977 and 1998, the Department of Justice reported that there were over 460,000 murders committed in the United States.9 Of the approximately 460,000 plus murder cases reported, a death sentence was imposed in only 6089 cases.10 Thus, the death penalty was imposed in less than 2% of those murders reported during the period.11 Out of those 6089 death penalty convictions, 500 individuals have been executed for their crimes.12 Therefore, between 1977 and 1998, 8% of those convicted by a jury and given the death penalty were, in fact, executed." The number is even more startling given that those defendants who were executed make up only one-tenth of 1% of all murderers. In addition, of those defendants given death sentences, 2137 (35% of all death penalty cases) were removed by appellate court review, commutation, or natural death.14 The prisoners that were executed in 1998 spent approximately ten years and ten months in prison prior to their executions.15

Imposing the death penalty in the United States is a rare, timeconsuming, and expensive process. Tennessee is a prime example. On April 18, 2000, Robert Glen Coe ("Coe") was the first person to

be executed in Tennessee since 1960.(16) Coe received the death penalty for raping and murdering eight-year old Cary Ann Medlin in 1979.(17) Currently, thirty-eight states, including Tennessee, and the federal government permit the death penalty.18 As of March 2001, Tennessee had ninety-seven prisoners on death row.19

II. TENNESSEE'S PROCEDURAL SAFEGUARDS AS SET FORTH IN DEATH PENALTY LEGISLATION THAT PROTECT A DEFENDANT'S DUE PROCESS RIGHTS AND ENSURE THAT THE DEATH PENALTY IS IMPOSED IN ONLY THE MOST HEINOUS OF CRIMES.

A. Tennessee's Procedural Safeguards That are Present in Legislation That Relate to the Commission of an Offense.

Analysis of a death penalty case should begin by examining the triggering offense. The Tennessee legislature has mandated that the death penalty may only be considered in the most heinous of cases.20 More specifically, the death penalty will only be imposed if the defendant commits first-degree murder.21 For example, offenses such as rape, child abuse, child rape, and kidnapping fall outside the immediate scope of the death penalty, no matter how heinous that particular act may be.22 Thus, by excluding many of these terrible offenders from death penalty consideration, the scope of the death penalty is narrowed to only those perpetrators of specific kinds of murder. As such, the first procedural safeguard in the Tennessee statutory framework is that only the most aggravated kinds of homicide are death-eligible.23 In Tennessee, criminal homicide is defined as the "unlawful killing of another person."24 Homicide includes first-degree murder, second-degree murder, voluntary