About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

1 Death Penalty Rep. 1 (1980-1981)

handle is hein.journals/depenrep1 and id is 1 raw text is: DEATH PENALTY

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


Unhappily, the drafters of the Ne
statute appear to have done thei
tutional homework reasonablywell,
only a few points of possible attack u
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.


What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most