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.”