Supreme Court Justice John Paul Stevens took the occa­sion of the Court’s denial of review to a death row defen­dant in Georgia to ques­tion the ade­qua­cy of the appeals process in that state. On October 20, the Supreme Court denied cer­tio­rari in Walker v. Georgia, an appeal from the Georgia Supreme Court, and Justice Stevens con­curred in that denial. However, Justice Stevens said he found the lack of care­ful scruti­ny by the low­er court to be ​“par­tic­u­lar­ly trou­bling,” espe­cial­ly since the case involved a black defen­dant and a white vic­tim. Justice Clarence Thomas also wrote sep­a­rate­ly in the case, sharply dis­agree­ing with Justice Stevens, and main­tain­ing that no pro­por­tion­al­i­ty review by the Georgia Supreme Court was constitutionally required.

Justice Stevens wrote:

I find this case, which involves a black defen­dant and a white vic­tim, par­tic­u­lar­ly trou­bling… Rather than per­form a thor­ough pro­por­tion­al­i­ty review to mit­i­gate the height­ened risks of arbi­trari­ness and dis­crim­i­na­tion in this case, the Georgia Supreme Court car­ried out an utter­ly per­func­to­ry review. Its under­tak­ing con­sist­ed of a sin­gle para­graph, only the final sen­tence of which con­sid­ered whether impo­si­tion of the death penal­ty in this case was pro­por­tion­ate as com­pared to the sen­tences imposed for similar offenses.

…

Particularly trou­bling is that the short­com­ings of the Georgia Supreme Court’s review are not unique to this case
…
And the like­ly result of such a trun­cat­ed review — par­tic­u­lar­ly in con­junc­tion with the remain­der of the Georgia scheme, which does not cab­in the jury’s dis­cre­tion in weigh­ing aggra­vat­ing and mit­i­gat­ing fac­tors — is the arbi­trary or dis­crim­i­na­to­ry impo­si­tion of death sen­tences in con­tra­ven­tion of the Eighth Amendment.

Justice Thomas wrote: ​“There is noth­ing con­sti­tu­tion­al­ly defec­tive about the Georgia Supreme Court’s deter­mi­na­tion. Proportionality review is not con­sti­tu­tion­al­ly required in any form.”

Justice Stevens’ opin­ion can be found here. Justice Thomas’ opin­ion can be found here. Walker v. Georgia, No. 08 – 5385 (2008) (Stevens, Thomas, JJ., con­cur­ring) (empha­sis added). See also New Voices, U.S. Supreme Court, and Race.

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