Academic journal article The University of Memphis Law Review

The Constitutionality of the "Heinous, Atrocious, or Cruel" Aggravating Circumstance in Death Penalty Cases and Its Interpretation by Tennessee Courts

Academic journal article The University of Memphis Law Review

The Constitutionality of the "Heinous, Atrocious, or Cruel" Aggravating Circumstance in Death Penalty Cases and Its Interpretation by Tennessee Courts

Article excerpt


On April 19, 2000, Robert Glen Coe became the first person to be put to death in Tennessee in forty years, causing the death penalty to become a widely discussed topic in Tennessee. The Knoxville News-Sentinel conducted a statewide poll on June 19-24, 2000, asking 607 people if they favored replacing Tennessee's death penalty with a mandatory life sentence without the possibility of parole.1 Almost sixty-one percent of people questioned would keep the death penalty, while only twenty-eight percent would replace it with life without parole.2 No matter what public opinion on the matter is, however, there is an obvious fascination with the death penalty that is prevalent in our society today. In fact, there was even a used electric chair from Tennessee auctioned off on eBay. Bidding reached $25,100 before it was withdrawn and purchased by Ripley's Believe It or Not! for considerably more.3

One of the most often litigated issues surrounding the death penalty is the requirement that the trier of fact find an aggravating factor at trial. In most states, these aggravating factors are very specific and narrow, meeting constitutional requirements.4 There is

one aggravating circumstance, however, that is much less precise and is the source of much litigation.5 The "especially heinous, atrocious, or cruel" aggravating factor is used by a number of states in a variety of languages.6 Section 39-13-204(i) of the Tennessee Code lists fourteen aggravating factors that make one eligible for the death penalty.7 The focus of this note will be section (i)(5), which states that "[t]he murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death[.]"8


A. The Furman Rule

In Furman v. Georgia,9 the issue before the Unites States Supreme Court was whether the "imposition and execution of the death penalty" in each of the three cases before it constituted "`cruel and unusual punishment' within the meaning of the Eighth Amendment as applied to the States by the Fourteenth."10 The Court issued a per curium opinion in which each of the five justices issued a separate concurring opinion, holding that the method by which the death penalty was imposed and carried out in each of the three cases before "it constitute[d] cruel and unusual punishment in violation of

the Eighth and Fourteenth Amendments."11

The Court held that the death penalty could not be imposed by sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.12 Justice Stewart stated in his concurrence that "the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."13 Justice White likewise stated in his concurrence that a capital sentencing scheme must provide a "meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not."14

In response to the Court's decision in Furman, state legislatures enacted two types of death penalty statutes.15 Some states enacted mandatory sentencing schemes that required the "death penalty [to] be imposed on all defendants convicted of a specified category of murder."16 These types of statutes were declared to violate the Eighth Amendment.17 On the same day that the mandatory sentencing schemes were held unconstitutional, the Court upheld the imposition of the death penalty "under statutes that allowed the sentencer to impose the death penalty but that ... provided legislatively drafted standards to channel the sentencer's discretion to avoid the [arbitrary and capricious imposition of the death penalty] condemned by [Furman]."18 It was in two of these cases that the United States Supreme Court first discussed the constitutionality of the "especially heinous, atrocious, and cruel" aggravating factor. …

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