Jayden Johnson

Constitutional Law

Dr. Josefson

April 26, 2021

Jennie Tarkington was 18 when she gave birth to a son, Gabriel. After the birth, Ms.

Tarkington fell into postpartum depression. While in a depressive episode, Ms. Tarkington

poured acid on her children and then slit her wrists. The children all survived, but they will

require institutional care for the rest of their lives. Ms. Tarkington recovered, and was tried for

attempted murder and malicious wounding of a child. Her trial was a circus, with gavel –to-gavel

TV coverage and interviews with jurors on Ellen and Today during the trial. Ms. Tarkington was

sentenced to death. In her jurisdiction, the state has a bifurcated process with a sentencing phase

that includes explicit possible aggravating and mitigating factors. Post-partum depression is not

one of the mitigating factors. Given that her case met one of the aggravating circumstances

(attacking a child), Ms. Tarkington was sentenced to death. On her appeal, Ms. Tarkington

argued that her Sixth and Fourteenth Amendment rights to counsel and due process, the Eighth

Amendment prohibition against cruel and unusual punishment and her Fourteenth Amendment

right not be deprived of life without due process were violated. Her conviction is overturned

based on denial of effective counsel and due process, but she is retried and convicted again. She

appeals again, arguing that the execution of post-partum women is cruel and unusual punishment

and disproportionate to her crime.

In going back to her original trial, the state had a bifurcated process with a sentencing

phase that included a possible aggravating and mitigating factor. Attacking a child in this state

was included as an aggravating circumstance, but post-partum depression was not included
mitigating factor, therefore Ms. Tarkington could be sentenced to death. According to Eddings v.

Oklahoma, the court done Ms. Tarkington a grave disservice and ensuring that justice is upheld.

In this case, the Supreme Court ruled that trial court judge could not refuse to hear mitigating

evidence pointing to the defendants troubled youth and how those factors led them to commit the

crimes they did. In Ms. Tarkington’s case, the court did not give her the option in presenting

evidence that could show how her post-partum depression was a significant mitigating factor in

the actions she took against her children. While it is not duty of the court to accept the mitigating

evidence presented by the defendants, the court does have an obligation to allow the defense to

present evidence that could explain why they took their course of action. In her second appeal to

her second conviction, Ms. Tarkington argues that the execution of post-partum women is cruel

and unusual punishment and disproportionate to her crime. In Solem v. Helm, the court

determined that the Eighth Amendment applies to barbaric punishments and sentences

disproportionate to the crime committed. In applying this standard, the court established three

factors to consider when making this determination: the gravity of the offense and the harshness

of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the

sentences imposed for commission of the same crime in other jurisdictions. According to the

facts, the court in Ms. Tarkington’s case did not correctly follow the precedent from Helm, and it

should result in her winning her appeal. Because of their bifurcated process and its use of the

aggravating and mitigating factors, they automatically jumped to sentencing Ms. Tarkington to

death because postpartum depression does not constitute a mitigating factor.

In Ms. Tarkington’s first appeal, she argued that her Sixth and Fourteenth Amendment

rights to counsel and due process, the Eighth Amendment prohibition against cruel and unusual

punishment and her Fourteenth Amendment right not be deprived of life without due process
were violated. Because of the facts presented in this case, there was extensive media publicity

surrounding the case. Her trial was considered a circus, media filled the courtroom everyday of

her trial causing it to be extremely overwhelming. In Ms. Tarkington’s opinion, her counsel did

not effectively handle the publicity that came along with the case which led to her arguing her

right to counsel being violated. Strickland v. Washington provides the necessary criteria in

determining if an individual had effective counsel. According to this case the defendant must

show that the counsel’s performance was deficient, and show that that deficient performance

prejudiced the defense. The defendant must also demonstrate that the counsel’s representation

fell below an “objective standard of reasonableness.” Ms. Tarkington’s counsel did not

effectively implore the judge to get control of the courtroom during her trial, which resulted in

her not receiving a fair trial. Because of these facts it can be seen that Ms. Tarkington did not

have effective counsel therefore violating her Sixth Amendment rights. Sheppard v. Maxwell

and Richmond Newspaper v. Virginia, provide the precedent regarding her argument about her

trial. In Sheppard, the court ruled that while freedom of press is necessary, it cannot hinder the

trial from achieving the purpose of adjudication. The actions of the media in Cleveland

altogether inflamed the minds of the jury to be against Sheppard and deny him a fair trial. The

totality of the circumstances denied Sheppard a fair trial. In Richmond, the court held that the

right of the press to attend criminal trials was guaranteed in the First Amendment. In applying

these two cases, I believe Ms. Tarkington did not receive a fair trial. As noted, before, the

courtroom during her trial was characterized as a “circus.” This coupled with the fact that juror

was attending media interviews on popular television networks makes it even more obvious that

Ms. Tarkington couldn’t have received a fair trial. In my opinion, this another instance in which

the totality of the circumstances denied Ms. Tarkington a fair trial.

 Ms. Tarkington also argues that because he suffered from post-partum depression, it

reduces the culpability and the government’s interest in deterrence and retribution in her case. In

Atkins v. Virginia, Daryl Atkins was convicted of abducting, robbing, and murdering a man. He

was originally sentenced to death, but in a second hearing it was argued that sentencing mentally

ill individuals to death constituted “cruel and unusual punishment.” In issuing a decision, the

court reasoned that capital punishment matters should be judged by the standards that currently

prevail through the evolving standards of decency that progress through society. This evolving

standard revealed that many states had adopted legislation that prohibited states from executing

mentally ill individuals. Ms. Tarkington in her appeal reveals that 15 of the 22 states allowing the

death penalty explicitly forbid death sentences for women suffering from postpartum depression,

showing that the evolving standards of society feel that postpartum women should not be

executed. Also, the court ruled that the government interest in retribution and deterrence were

insufficient in justifying the use of the death penalty on mentally ill persons. It seems to me that

the next step to take would be to include women suffering from postpartum depression into this

argument with the mentally ill. In Atkins, the court reasoned that if the culpability of an average

murderer does not warrant the death penalty, how can a lesser culpable mentally ill man be

sufficient. There is significantly less interest in seeing a mother suffering from postpartum

depression get what she deserves for harming her children. In fact, there should be a larger

interest in getting Ms. Tarkington the help that she needs. As they said in Atkins, the interest in

deterring future mothers from committing these crimes when suffering from postpartum

depression is significantly reduced. Women have no control over the possibility of them

suffering from postpartum depression, therefore subjecting Ms. Tarkington to this judgement

would achieve no interest, and an argument could be made that sentencing Ms. Tarkington to
death would demonstrate the government’s failure to protect and ensure the well-being of its

citizens. In both Atkins and Ms. Tarkington’s case, the polling jurisdictions analysis shows that

15 states have recently outlawed the use of the death penalty on mentally ill persons and women

suffering from postpartum depression. This obviously shows that there is a clear direction of

change in society, which is moving away from the execution of women suffering from

postpartum depression.

Ms. Tarkington also argues that she has a fundamental right to life, therefore the court

should have to pass strict scrutiny in determining the application of the death penalty in her case.

In all of Supreme Court’s rulings over capital punishment issues, the court has repeatedly refused

to use the standard of strict scrutiny. For example, in Gregg v. Georgia the court demonstrated

that they generally think that the death penalty is okay. They give the fundamental justification

of the death penalty by evaluating the government interest in the death penalty naming

retribution and deterrence. They fail to do a strict scrutiny analysis and instead use the rational

basis test in determining the right to life illustrating that they feel that it is not fundamental. To

this point, I would have to completely disagree with the Supreme Court. If the court is going to

make any right fundament, the right to life should be the first. Without the right to life, a citizen

is unable to enjoy the freedoms that come with living in the United States and within this

democracy. Every fundamental right that the court has previously established or upheld, directly

relates back to the right to life. After the ruling of Atkins v. Virginia and Roper v. Simmons, the

states are prohibited from executing the mentally ill and juveniles. It is a fact that women

suffering from postpartum depression occasionally kill their newborn children. Among most

advanced democracies, women who engage in this action are not prosecuted for murder, but in

the United States they are. I believe this fact in itself shows that the next step is to prohibit
women suffering from postpartum depression to be subject to the death penalty, and that when

the state wants to impose the death penalty, they must apply strict scrutiny because life is a

fundamental right.

Ms. Tarkington also argues that her Sixth Amendment rights were violated by the public

nature of her trial, when the prosecutor eliminated all females who had been pregnant from the

venire with peremptory challenges and convicted her with a vote of 8 out of 9 jury members.

According to Williams v. Florida, the number of jurors must be 12. Also, in criminal cases the

jury must come to a unanimous vote in order to convict an individual of the charges brough

against them. In Ms. Tarkington’s case, neither of the precedents set in either of these cases were

followed, therefore resulting in another violating of her Sixth Amendment rights. In addressing

the peremptory challenges used by the prosecutor which resulted in the eliminating of all females

who had been pregnant, three cases help understand the validity of those actions. First, in Batson

v. Kentucky the court ruled that a prosecutor’s action of removing 4 black jurors from a jury,

resulting in a jury composed of all whites in a trial of a black man to be a violating of the Sixth

and Fourteenth Amendments. The court reasoned that racial discrimination in the selection of

jurors deprived the accused their rights during trial but undermined the public confidence in the

system. Next, in J.E.B. v. Alabama ex rel T.B. the court struck down the actions of the state of

Alabama when they used its peremptory strikes to eliminate nine men, all of which who were in

the jury pool. The court explained that gender-based classifications require a persuasive

justification in order to survive constitutional scrutiny. Lastly, in Bostock v. Clayton the court

ruled that an employer may not fire an employee because they were gay or transgender because it

violated Title VII of the Civil Rights Act of 1964. It is important to note that Title VII did not

explicitly include an individual sexual orientation, so the court had to prove that the employer
was discriminating on the basis of his sex. To be gay, a man has to have sex with another man. If

Bostock was a woman having sex with men, the employers would not be applying the same

restrictions. In applying these facts to Ms. Tarkington’s case, the prosecutor’s use of their

peremptory challenges is a violation of her Sixth Amendment. Removing women who have been

pregnant from the venire deprives Ms. Tarkington her of her rights and results in other formally

pregnant losing their confidence in the legal system, especially if they have had or are still

having problems with postpartum depression. The prosecutor provides no persuasive justification

for eliminating those women from the jury other than the fact that they have been pregnant

before. Lastly, discrimination on the basis of gender directly results in discrimination of gender

because only women can get pregnant.

Finally, she argues that the second trial violates her constitutional right against double

jeopardy. In Ashe v. Swenson, Bob Ashe was charged with breaking in a house and robbing a

group of individuals within the house. Due to lack of evidence, the trial ended in Ashe being

declared not guilty. Soon after the prosecutor tried to bring Ashe up on the same charges but

against a different person, which led Ashe being convicted. Ashe appealed to the Supreme Court

and they held that because the robbery was a single offense and although there were multiple

victims, the second trial involved the same incident. Since he was found not guilty in the first

trial, the same verdict had to be given in the second. The double jeopardy clause prohibits an

individual from being prosecuted a second time for the same offense that they were just found

not guilty of. This case and clause directly applies to Ms. Tarkington. Her original conviction

was already overturned because of her denial to effective counsel and due process; therefore, she

should not have been convicted and retried again.

 In response to Citizens United and McCutcheon, Congress in 2022 passes a law that

applies the restrictions of sec 203 of the Bipartisan Campaign Reform Act to all individuals,

unions, for-profit corporations, non-profit corporations, and even non-incorporated entities.

Congress’s new law will not allow political advertising on the radio, internet, or television in the

30 days before a primary election and the 30 days before a general election. Citizens United v.

FEC dealt with a similar issue. In this case, Citizens United claimed that section 203 of the

BCRA was unconstitutional because it prohibited corporations from engaging in political speech.

The court in this case ruled that speech was an essential mechanism in democracy, and political

speech is included because it holds officials accountable to the people, and all citizens have a

right to inquire, hear, speak, and use information to reach a consensus. Political speech must

stand when a law tries to suppress it, and because of this being considered a fundamental right,

that law is subject to strict scrutiny. The facts in this case are slightly different because Congress

is trying to suppress the speech of everyone not just corporations. Using the precedent set in

Citizens, this law is unconstitutional. The political speech of all people must be protected

because it is fundamental right to the individuals and corporations, but also to the function of

democracy. If congress did want to pass this law, they must apply strict scrutiny but they fail to

do that here. The new law also limits hard money contributions to candidates, parties and PACs

to $100 per election. In Randall v. Sorrell, the court struck down a Vermont law that placed a

ceiling on campaign contributions. By applying this case to the law enacted by Congress, the

$100 limit on hard money contributions to candidates is unconstitutional. Placing those times of

severe limits on contributions damages every individual’s freedom of speech interest.

Every state controlled by Republicans pass a law that requires everyone to provide proof

of residence and identity and re-register to vote every year. Acceptable voter ID forms are a
driver’s license, a $25/ year voter id or a concealed carry permit. This law would be

constitutional if they did not make individuals pay for the voter id. In Crawford v. Marion

Country, the court considered if an Indiana law placed an unduly burden on the citizen’s right to

vote. The Voter ID law required citizens to present government issued photo ID at the polls in

order to vote in any primary or general election. A voter who fails to bring ID to the polls could

cast a provisional vote that would be counted if the voter brough proper identification to the

circuit court clerk within ten days. The court ruled that the states interest in modernizing its

election procedures, preventing voter fraud, and safeguarding voter confidence were all

justifiable reasons for enacting the Voter ID law. The burdens relevant to this case are imposed

on those who do not have the correct identification according to SEA 483, but the court claimed

that that burden was mitigated by the fact that individuals could send in a provisional ballot and

then confirm their ballot by traveling to the circuit court and executing the required affidavit, or

obtain a free voter identification card provided by the county. Applying this decision to

Congress’s law, it places an unduly burden on individuals that are trying to vote. First, when

compared to the Indiana law, this law from Congress is enforcing voters to also bring proof of

residence and photo identification. The Indiana law only required voters to bring photo

identification, also Congress is requiring individuals to re-register every year. Second, Congress

is essentially issuing a poll tax to all voters in requiring them to pay $25 dollars a year for a voter

id. These requirements being placed on individuals trying to vote obviously poses substantial

burden on citizens, and the government has not provided a justifiable reason for enforcing these

requirements.

The last issue of this law involves the redrawing of congressional boundaries. Before the

redistricting, Republicans received 52 % of the vote and 55% of the congressional seats. After
the redistricting, Republicans received 48% of the vote and 70% of the congressional seats.

Wesberry v. Sander provides the necessary precedent for this issue. This case involved a

challenge to the way Georgia apportioned its congressional districts. Plaintiffs claimed that the

states congressional districting system violated the Constitution. The inequality between The

Fifth and Ninth District left the Fifth District’s legislator representative of two to three times as

many people as the other congressmembers from Georgia. The court held that the

malapportionment was unconstitutional because the congressional districts within a state must be

as equal in population as possible. This same redistricting flaw happened when Congress enacted

its new law. Before the redrawing, the seats were relatively equal between democrats and

republicans, but now they are significantly malapportioned in favor of the Republicans even after

receiving a lower percentage of the votes. Due to this fact, the law must be held as

unconstitutional and the congressional boundaries must either return to how it was before or

redrawn so that state is as equal in population as possible.