In 2003, Stephen Henderson was a Supreme Court beat reporter for the McClatchy News Service. New to the job, he carried a small leather-bound copy of the Constitution with him wherever he went. Henderson wasn’t looking to write a typical death penalty story. He wasn’t looking for convictions overturned by DNA evidence, stories of exonerations or last-minute stays from the governor. Instead he was interested in how defense attorneys handled the penalty phase of capital cases - the part of the case that could spare their client's life. And he knew he was treading on a “taboo type subject”: after all, these people were, as Henderson states: “killers, vicious killers.” One man stabbed an ex-girlfriend to death, another slashed an insurance agent’s throat when she refused to give him money. Often there was little doubt of guilt, conviction was assumed.

In 1972, when the Supreme Court placed a defacto ban on the death penalty in the United States, it claimed in Furman v. Georgia* that its arbitrariness in application constituted an act of “cruel and unusual punishment” that violated the Eighth amendment of the Constitution. But in its 1976 Gregg v. Georgia ruling, the Supreme Court once again allowed for the death penalty: it admitted that “the penalty of death is different in kind from any other punishment,” but affirmed that Georgia’s bifurcated system in trial and sentencing provided for “specific jury findings as to the circumstances of the crime or the character of the defendant” and gave some guarantees of fairness in application.

While the judges had ruled that the Eighth Amendment did allow for the death penalty, it also saw that the Sixth Amendment, the right to counsel, as a means to ensure fairness. As Stephen Henderson began to understand, death penalty defendants needed “more than just a warm body” in the chair next to them in court, particularly during the sentencing phase. Henderson found that the Supreme Court had ruled, and ruled frequently since 1976 -- Strickland v. Washington (1984); Williams v. Taylor (2000); Wiggins v. Smith (2003); Rompilla v. Beard (2005) -- on that very issue: defense attorneys are required to argue vigorously for their clients’ lives, which includes looking into childhood abuse or evidence of a low IQ – anything that might lead the jury to impose a lesser sentence than death.

But when Henderson looked at 4 states with the death penalty – Alabama, Georgia (the state of Furman and Gregg), Mississippi and Virginia – he found a troubling common denominator: defendants in capital cases were not getting a proper defense. Instead, poorly funded justice systems were making it impossible for public defenders to apply Supreme Court standards.

>>Read Stephen Henderson’s original reporting.

>>Watch “Death Is Different” online.

*While many sites provide the complete text (written opinions, transcripts of oral arguments, etc.) of Supreme Court proceedings – including www.supremecourtus.gov -- Oyez.org links are provided here. Oyez is a multimedia archive which includes audio recorded in the Court since the installation of a recording system in October 1955. Oyez podcasts of Supreme Court proceedings are available via iTunes.

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