Thurgood Marshall

“ Our cases and state courts' experience with capital cases compel the conclusion that the Eighth and Fourteenth Amendments require appellate review of at least death sentences to prevent unjust executions. I believe the Constitution also mandates review of the underlying convictions. The core concern of all our death penalty decisions is that States take steps to ensure to the greatest extent possible that no person is wrongfully executed. ”

“ The Court today allows a State to execute a man even though no appellate court has reviewed the validity of his conviction or sentence. In reaching this result, the Court does not address the constitutional claim presented by petitioner: whether a State must provide appellate review in a capital case despite the defendant's desire to waive such review. Rather, it decides that petitioner does not have standing to raise that issue before this Court. ”

“ The Court rejects petitioner's argument that he should be allowed to proceed as Ronald Gene Simmons' "next friend," relying on the federal common-law doctrine that a competent defendant's waiver of his right to appeal precludes another person from appealing on his behalf. If petitioner's constitutional claim is meritorious, however, Simmons' execution violates the Eighth Amendment. The Court would thus permit an unconstitutional execution on the basis of a common-law doctrine that the Court has the power to amend. ”

“ Because a wrongful execution is an affront to society as a whole, a person may not consent to being executed without appellate review. See id., at 1018, 97 S.Ct., at 439-40 (WHITE, J., dissenting) (" [T] he consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment") . ”

“ But as long as the real party in interest satisfies those standing requirements, as Simmons clearly does, this Court will be presented with an actual case or controversy. If the Court's suggestion were true, it would necessitate abolishing next-friend standing entirely. In terms of Article III, a next friend who represents the interests of an incompetent person with whom he has a significant relation is no different from a next friend who pursues a claim on behalf of a competent stranger ”

“ Although the fact that a constitutional issue will never be resolved may not justify carving out an exception to Article III's standing requirements, surely that fact, when considered with society's commitment to avoiding wrongful executions, provides ample cause for enlarging the scope of a federal common-law doctrine. ”

“ Assuming for the sake of argument that Simmons was competent to forgo petitioning this Court for review [5] and that Whitmore is only minimally interested in Simmons' welfare, I would nevertheless permit Whitmore to proceed as Simmons' next friend. The requirements for next-friend standing are creations of common law, not of the Constitution. ”

“ Thus, much of this Court's death penalty jurisprudence rests on the recognition that appellate review is a crucial means of promoting reliability and consistency in capital sentencing. The high percentage of capital cases reversed on appeal vividly demonstrates that appellate review is an indispensable safeguard. Since 1983, the Arkansas Supreme Court, on direct review, has reversed in 8 out of 19 cases in which the death penalty had been imposed. ”

“ Jefferson, 15 F.Cas. 660, 663 (No. 8,411) (CC Va.1811) (Marshall, C.J., Circuit Judge) (common-law principle is "a principle of unwritten law, which is really human reason applied by courts, not capriciously, but in a regular train of decisions, to human affairs, according to the circumstances of the nation, the necessity of the times, and the general state of things, [and is] susceptible of modification") . In this case, the magnitude of the societal interests at stake justifies relaxing the next-friend requirements to permit Whitmore to challenge Simmons' execution. ”

“ This Court has consistently recognized the crucial role of appellate review in ensuring that the death penalty is not imposed arbitrarily or capriciously. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) , the Court upheld Georgia's capital sentencing scheme in large part because the statute required appellate review of every death sentence.
"As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's Supreme Court. ”

“ Given that the Constitution requires mandatory, nonwaivable appellate review, the question remains whether Whitmore may seek relief in this Court on Simmons' behalf. This Court should take whatever measures are necessary, and within its power, to prevent Simmons' illegal execution. The common-law doctrine of next-friend standing provides a mechanism for doing so without exceeding the Article III limitations on our jurisdiction. [3] The Court's refusal to use that mechanism suggests that the Court's desire to eliminate delays in executions exceeds its solicitude for the Eighth Amendment. ”

“ State, 289 Ark. 91, 99, 708 S.W.2d 630, 634-635 (1986) (Hickman, J., concurring) . Other States also have remarkably high reversal rates in capital cases. See, e.g., Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 Mich.L.Rev. 1741, 1792 (1987) (Florida Supreme Court set aside 47% of death sentences between 1972 and 1984) ; Dix, Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97, 144-145, and n. 437 (1979) (Texas Court of Criminal Appeals reversed conviction or invalidated death sentence in 33% of cases between October 1975 and March 1979) ”

“ Ore.Rev.Stat. § 163.150 (1) (g) (1989) ; S.C.Code § 16-3-25 (1985) ; S.D.Codified Laws § 23A-27A-9 (1988) ; Tex.Crim.Proc.Code Ann. § 37.071 (h) (Supp.1990) ; Va.Code § 17-110.1 (1988) ; Wash.Rev.Code § 10.95.100 (1989) ”