Capital Sentencing

Carol SteikerProfessor Carol Steiker ’86 teaches the first-year Criminal Law course, an upper-level course on advanced criminal procedure, and a seminar on capital punishment. A former public defender, she is the author of numerous articles on the death penalty and the criminal justice system more generally, and she has testified before state and federal legislatures on issues of crime and punishment. She was appointed assistant professor in 1992 and received tenure effective July 1, 1998, when she also became one of the Law School’s two associate deans for academic affairs. She has a four-year-old daughter and six-month-old son, both born "on the tenure track."

The Bulletin spoke with Steiker about capital sentencing and the case of Karla Faye Tucker. Tucker was executed by lethal injection this past February in Huntsville, Tex., at the age of 38, for her participation in a double murder in 1983. Tucker was the first woman to be executed in Texas since the Civil War, and the first in the country since 1984, when Velma Barfield, 52, was put to death in North Carolina, also by lethal injection, for killing her boyfriend.

Bulletin: Before she died, Karla Faye Tucker attracted worldwide attention. Her petition for clemency was supported by the Pope, the brother of one of the victims, a juror, and one of the prosecutors, among others. What made her case so compelling?Steiker: I think it was a combination of her being a white woman, a born-again Christian, who was apparently sincere in her remorse—and beautiful and well-spoken, to boot! She gave a number of lengthy television interviews, and she had a soft, musical voice and a very sincere demeanor. She was earnest, poised, and charismatic, and it was moving to listen to her. She seemed like someone you would want to have over for dinner, which is not the image projected by most people on death row. It’s difficult to imagine that the woman who appeared on Larry King Live and the 700 Club was the same person who 15 years earlier had, with her boyfriend, broken into someone’s apartment to rob him and ended up pickaxing him and his girlfriend to death.

You wrote at length about her case in 1992. What prompted your interest then? I had read a biography of Karla Faye Tucker [Crossed Over: A Murder, A Memoir] by the novelist Beverly Lowry. It’s the story of Tucker’s life and her crime and redemption. Beverly Lowry had lost her 18-year-old son, who had been in some serious trouble with the law, in an apparent hit-and-run accident. I think Lowry was moved to try to understand Karla Faye Tucker as a way of understanding her own lost son, and what can make people go so wrong. She tells a nuanced story about this young woman’s life and the culture of violence she grew up in. Karla Faye Tucker had been a teenage prostitute, schooled in sex, drugs, and alcohol by her own mother.


It is becoming apparent that most jurors do not understand the instructions that they are given. A group of researchers has undertaken a "Capital Jury Project" that is studying what capital jurors understand about the process, and it is astounding, for example, how few of them even understand the meaning of the word "mitigating."

The book is really fascinating to me legally, so much so that I use it in my Capital Punishment seminar. Lowry wrestles in a personal way with the same questions the law has to confront systematically. She asks how the story of Tucker’s life and her attempt at redemption through faith and good works can, and should, affect our reaction to her crime and her fate, just as the legal system must consider potentially mitigating factors, such as evidence of a troubled life, or an exemplary one, in deciding whether or not to impose the ultimate sanction of death.

How did “mitigating factors” enter the lexicon of capital sentencing? In 1972, the Supreme Court invalidated the death penalty as it then existed throughout the United States in the landmark decision of Furman v. Georgia. But the decision was a close one (5-4), and the dissenters essentially invited the states to redraft their capital punishment statutes in order to deal with the Court’s concerns about the arbitrary infliction of the death penalty. As Justice Stewart, one of the justices in the majority, put it, the death penalty appeared to "strike like lightning" and was therefore "cruel and unusual punishment" under the Eighth Amendment.

A substantial majority of the states accepted this invitation, and four years after Furman, the Supreme Court ruled on the constitutionality of these new statutes by accepting five capital cases for review from five different states with new statutes. Two of those states, Louisiana and North Carolina, had attempted to deal with the problem of arbitrariness by enacting a mandatory death penalty for certain crimes. The Supreme Court struck down these statutes because they failed to permit the sentencer to confront the individual characteristics of each particular defendant. But the three other states, Florida, Georgia, and Texas, had all enacted statutes that attempted to guide the discretion of the sentencers by giving them factors to consider or by asking them particular questions. The phrase "mitigating factor" comes from the Georgia and Florida statutes, which in turn had borrowed the idea from the Model Penal Code. The Supreme Court has since required all states to permit their capital sentencers—whether juries or judges—to consider, as a mitigating factor, any aspect of a defendant’s background, character, or crime that might call for a sentence less than death.

What sort of instructions would a jury typically receive after Furman , that they wouldn’t have received before? Prior to Furman, capital sentencing juries were essentially given no instructions except to follow their consciences on the question of life or death. Today, juries are often required to consider whether or not certain listed "aggravating" or "mitigating" factors are present. They are sometimes permitted to consider non-listed aggravating factors, and they are always required to consider whether any mitigating factors, listed or non-listed, exist. Then they are essentially asked to weigh the bad against the good. These instructions can be quite detailed and complicated, and they are often accompanied by what look like "worksheets" for the jurors to fill out.

Do such detailed structuring and close oversight of jury deliberations improve the quality of capital sentencing? Probably not. Indeed, the very opposite is likely to be the case. For one thing, it is becoming apparent that most jurors do not understand the instructions that they are given. A group of researchers has undertaken a "Capital Jury Project" that is studying what capital jurors understand about the process, and it is astounding, for example, how few of them even understand the meaning of the word "mitigating."

Perhaps more important, the "worksheet" aspect of capital sentencing may very well distance jurors from feeling that they in fact are making a moral choice about a person’s life. Instead, the jurors feel more like they are working through a math problem in which no real act of judgment must occur.

Finally, even though the consideration of aggravating and mitigating circumstances adds some structure to capital sentencing deliberations, the requirement that juries be free to consider any potential mitigating factor opens up and even explodes the very structure that the new capital statutes tried to create. That is the deep tension in death penalty law: between fairness—treating like cases alike—and individualized justice—taking into account everything that makes an individual case different. Now that I have kids, I really get it. Do you treat your kids exactly the same, or do you take into account their individual needs and differences? Do they all get bikes when they’re four, or does it depend on the kid? How do you have consistent rules that you apply across a class of cases, but also take into account the things that make the cases relevantly different?

How does the deep tension you describe play out in the Karla Faye Tucker case? Karla Faye Tucker’s life illustrates in a profound way how our aspirations toward both fairness and individualization pull in two directions. It’s easy to be moved by Lowry’s account of Tucker’s background, personality, and apparent redemption. But at the same time, it’s important to recognize that the more of Lowry’s individualizing portrait of Tucker a sentencer is permitted to consider, the greater the opportunity for arbitrariness and bias.

Do you think Tucker should have been executed? Well, I don’t believe anyone should be executed. One of the questions her case raises is whether a person’s post-conviction history should be considered as a potentially mitigating factor. Fifteen years elapsed between the commission of her crime and her execution. She was a very different person when she was put to death in February. The sentencing jury at the time of her conviction would probably have been right to say that she would be a danger in the future, but these things are hardly an exact science. That’s one of the reasons I oppose the death penalty.

In your writings on capital sentencing, coauthored with your brother, Professor Jordan Steiker ’88 of the University of Texas Law School, you’ve referred to "roads not taken" in capital sentencing. What are some of these, besides the Court’s failure to resolve the tension between individualized sentencing and more guidance for juries? For one thing, the Court has declined to exempt certain classes of offenders from death eligibility—children under the age of 18 and people with mental retardation, as well as people who have participated in a crime but have not killed, or even intended to kill,such as a get-away driver or a lookout.

Even if the Court continues to refuse to create categorical exemptions for the least culpable, it could insist that the states truly limit their lists of aggravating factors. As it stands now, many states have such long lists of aggravating factors and these factors are often so all-encompassing, such as the factor that the crime be "especially heinous, atrocious, or cruel," that almost everyone who was eligible for the death penalty in the pre-Furman days is still eligible today.

Also, despite the Court’s language about the need for heightened reliability in capital cases, it is incredible how little it has required of counsel. If you took the Court at its word that the Eighth Amendment requires a degree of reliability in capital convictions and sentences over and beyond what we require in ordinary criminal cases, the first thing you would do is have better lawyers. There are a series of cases in Texas known as the sleeping lawyer cases, where counsel has fallen asleep during part of the trial. Invariably the courts have found that doing so was not prejudicial, because counsel did not fall asleep during the really important part. Such deferential standards prevent large numbers of disgruntled defendants, once they’re locked up, from claiming they had bad lawyers. But they also prevent courts from enforcing a minimum level of competence in capital representation.


It is a deep irony that the Supreme Court’s Eighth Amendment jurisprudence has not only failed to meet its purported goal of rationalizing the imposition of the death penalty, but also may have helped to entrench capital punishment in the United States.

Finally, there also ought to be more post-conviction review of capital cases. But in fact, Congress’ recent anti-terrorism act, which was passed two years ago, greatly limits the ability of the federal courts to review state convictions.

In your critique of the Supreme Court’s Eighth Amendment jurisprudence, you and your brother have written that the litigation in Furman and subsequent pivotal cases that was meant to end or limit the use of the death penalty has probably had the effect of reinforcing capital punishment and stabilizing it as a continued social practice. Could you address that? Yes, it is a deep irony that the Supreme Court’s Eighth Amendment jurisprudence has not only failed to meet its purported goal of rationalizing the imposition of the death penalty, but also may have helped to entrench capital punishment in the United States. People both inside and outside the criminal justice system currently believe that the federal courts are strictly regulating the capital sentencing process under the Eighth Amendment, when in fact, that regulation has done quite little to ameliorate the arbitrariness and discrimination that plagued the pre-Furman death penalty schemes. As a result, we are left with the worst of all possible worlds: the appearance of intensive regulation despite its virtual absence. People thus are led to an unjustified confidence in the precision of a system that is still deeply flawed. The constitutional regulation of the death penalty can be viewed as a sobering lesson in unexpected consequences.

Interview conducted by Nancy Waring

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