Legal Background on Arbitrariness

On June 29, 1972, the U.S. Supreme Court reviewed a group of cases, which argued that the death penalty was being applied in an arbitrary and capricious manner—a manner that was uneven, infrequent, and often selectively imposed against black people. In the landmark decision known as Furman v. Georgia, 408 U.S. 238 (1972), the Court held that Georgia’s death-penalty procedures violated the Eighth Amendment’s ban on cruel and unusual punishments. The Furman decision effectively voided every state’s death penalty law, commuted the sentences of more than 600 death-row prisoners around the country, and suspended the future use of the death penalty. The five justices in the majority could not agree on a rationale in striking down the death penalty, but all focused on the freakish and unpredictable manner in which death sentences were imposed.

Following Furman, many states enacted new statutes that they believed would decrease arbitrariness in capital sentencing. To address the unconstitutionality of unguided jury discretion, some states removed all discretion by mandating capital punishment for those convicted of capital crimes. This practice, however, was held unconstitutional by the Supreme Court in Woodson v. North Carolina, 428 U.S. 280 (1976), because it did not allow for consideration of individual differences among defendants.

Other states sought to focus the jury’s discretion by providing sentencing guidelines to direct the jury when deciding whether to impose death. Georgia provided bifurcated proceedings, in which guilt and sentence are determined in separate trials. In the sentencing phase, the jury had to find at least one aggravating circumstance (characteristics that make certain murders worse than others) beyond a reasonable doubt before considering other evidence and making a decision between life or death. In an effort to safeguard against arbitrary sentencing, Georgia also created specialized appellate review of any death sentence, which included consideration of whether the death sentence was a proportional punishment. In 1976, Georgia’s guided discretion statute, as well as statutes in Florida and Texas, were approved by the Supreme Court in Gregg v. Georgia, 428 U.S. 153. The decision in Gregg held that the revised death-penalty statutes were constitutional and that the death penalty itself was constitutional under the Eighth Amendment. The Court’s decision in Gregg began what many call “the modern era of capital punishment.”

Despite the majority decision in Gregg, Justice Thurgood Marshall remained skeptical that the death penalty could be applied fairly even with the new procedures in place. “The task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system — and perhaps any criminal justice system — is unable to perform.” Godfrey v. Georgia, 446 U.S. 420, 440 (1980) (Marshall, J., concurring). The goal of the refined procedures was to reserve the ultimate punishment only for “those whose unspeakable deeds truly merited their assignment to the category of the ‘worst of the worst.’” Frank Baumgartner, et al., Deadly Justice: A Statistical Portrait of the Death Penalty, Oxford Univ. Press (2017), at 4.

Less than a decade after the Supreme Court approved the new capital sentencing statutes based, in part, on a requirement that state appellate courts conduct a comparative proportionality review of all death sentences, the Court held that review was not constitutionally mandated. In Pulley v. Harris, 465 U.S. 37 (1984), the Court recognized that proportionality review “does provide the ‘function of death sentence review with a maximum of rationality and consistency’” but nonetheless reasoned that “[t]he fact that the practice is an especially good one … does not mean that it is an indispensable element of meaningful appellate review.” This decision effectively resulted in most states abandoning the practice of reviewing death sentences to determine whether they were, in fact, just or proportionate in relation to others.

In the decades since Gregg, studies, reports, research, and data have shown that the administration of capital punishment throughout the United States is not applied only to the worst of the worst but instead is affected by arbitrary and irrelevant factors. In fact, Justice Stevens—who was on the Court at the time Gregg was decided and voted in favor of upholding the death penalty based on the new statutory requirements—has since said that “the death penalty today is vastly different from the death penalty that we thought we were authorizing.” At the time of the decision, Justice Stevens believed that the universe of defendants who could be eligible for the death penalty was “sufficiently narrow” so that society could be “confident that the defendant really merits that severe punishment,” but over the years, the death penalty has expanded and the protections that were once in place have been abandoned that Stevens said “the underlying premise for [his] vote [in Gregg] has disappeared.”