The Supreme Court recently decided that the due process clause prohibits calculating punitive damages based upon harm caused to strangers. (Philip Morris USA v. Williams). In other words, when punishing a corporation with money damages, a jury must engage in individualized decision-making, but maybe not so in deciding the imposition of the death penalty. (In re William Weaver, NY Times 3/22/07)
I suggested in an earlier post (Punishing Punitive Damages) that it might not be inappropriate in awarding punitive damages to consider that the corporate defendant had a history of the same wrongful conduct and knowingly continued it, and that an award based upon that history would serve to punish the defendant and deter it and others from doing the same. But the Court having confined a jury's consideration to the individual claimant where only money is involved, it is difficult to reconcile that with the argument that a jury can consider the effect upon "strangers" where life is involved. True, in the punitive damage case the "strangers" were other victims, and here they are potential perpetrators, but in each instance, we are talking about persons not before the court.
It can be debated whether or not the death penalty actually deters anyone. But assuming, as Justice Kennedy stated that "Deterrence is one of the reasons we have the death penalty", the question remains whether or not that policy should be presented to a jury as a reason to execute a particular individual. Assuming a jury is undecided, should the possible effect upon unknown others tip the scales and result in the imposition of the death penalty?
Of course, all of this is played out against the unfortunate and almost insurmountable barrier to habeas corpus imposed by the Antiterrorism and Effective Death Penalty Act. In effect and logically, it permits the prosecutor (and others) the opportunity to claim that the state court decision was not contrary to "clearly established federal law as determined by the Supreme Court of the United States" (as the statute requires), if the members of the Court themselves cannot agree on the resolution of the underlying question!