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1 Death Penalty Rep. 1 (1980-1981)

handle is hein.journals/depenrep1 and id is 1 raw text is: DEATH PENALTY REPORTER Vol. 1, No. 1 Though the justice of God may indeed ordain that some should die, the justice of man is altogether and always insufficient for saying who these may be... ....Charles L. Black, Jr. Sept. 1980 ANTHONY AMSTERDAM* ANALYZES NEW MEXICO DEATH PENALTY STATUTE Unhappily, the drafters of the Ne statute appear to have done thei tutional homework reasonablywell, only a few points of possible attack u handiwork. (1) SECTION 3(B): FAILURE TO RE FINDING BEYOND A REASONAB THAT AGGRAVATING ClRCUMS OUTWEIGH MITIGATING CIRCUMS Although section 4 requires tha one aggravating circumstance(and more, see paragraph (2)below) must a reasonable doubt in order to suppo sentence, section 3(B) does not a require that the totality of aggrav cumstances must be found beyond able doubt to prevail over the totafi igating circumstances before a death may be imposed. I would argue that Eighth and Fourteenth Amendrer Constitution of the United States parallel provisions of the New Mexic tution, with whose construction Iam unfamiliar) forbid the infliction of sentence unless both (a) the findin, aggravating circumstance which isc by the sentencer, and (b the over- mination that the circumstances in tion outweigh the circumstances i tion, are made beyonda reasonabiE sentially, the argument goes this way: t is settled that the command of the Fifth ourteenth Amendments to the Constitu- of the United States protects the 3ed against conviction except upon proof -id reasonable doubt of every fact neces- to constitute the crime with which he is )ed. ire Winship, 397 U.S. 358, 364 )), See also, e.g., Cool v. United States, U.S. 10, 104 (1972); Hankerson v. Carolina 432U.S. 233,238-239(1977); (e v. Willimas, 425 U.S. 501, 503 (1976) im); Taylor v. Kentucky, 436 U.S. 478 3); Jacksonv. Virginia, 47 U.S.L.W. 4883 June 28, 1979). The same standard of is constitutionally required to establish Ect upon which a death sentence is to be J. For the qualitative difference (be- n death and lesser criminal penalties Is) ...a corresponding difference is the for reliability in the determination that 1 is the appropriate punishment in a spe- case. Woodson v. North Carolina, 428 280, 305 (1976) (plurality opinion). And 3asonable-doubt standard is the funda- 81 instrument of the Anglo-American system for assuring reliability in crimi- udments, recognized not only as a ?instrument for reducing the risk of con- ins resting on factual error, In re Win- * Anthony Amsterdam is the Montgomery Professor, Clinical Legal Education at Stanford University Law School. He teaches criminal law, procedure andevidence- Professor Amsterdam hasbeen involved in all stages of death peanlty work for twenty years, collaberating with the NAACP Legal Defense fund. His work can be found in many United States Supreme Court briefs and opinions. Published twelve times a year. Annual subscription rate is $50.00 for 12 issues with a three ring binder. Copyright 1980. National College for Criminal Defense. All rights reserved. The reproduction of this work in any form is forbidden without the written permission of both the college and the editor. Death Penalty Reporter is published monthly by NCCD National College for Criminal Defense, College of Law, University of Houston, Houston, Texas 77004. To subscribe by telephone, call (713) 749-2283. k1

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