Shafer v. South Carolina: another missed opportunity to remove juror ignorance as a factor in capital sentencing.

• Author: Baarsma, William
• Position: Supreme Court Review

Shafer v. South Carolina, 532 U.S. 36 (2001)

1. INTRODUCTION

   In Shafer v. South Carolina, (1) the Supreme Court once again confronted South Carolina's practice of refusing to inform capital juries choosing between a sentence of life imprisonment or death that the defendant would be statutorily ineligible for parole if sentenced to a life term. Seven years earlier, in Simmons v. South Carolina, (2) the Court held that a capital defendant must be allowed to inform the jury of his prospective parole ineligibility, but only where: 1) the prosecutor had raised the issue of the defendant's future dangerousness, and 2) the only alternative to death is life imprisonment without the possibility of parole. (3) Subsequently, in response to the 1996 amendments to South Carolina's capital sentencing scheme, the South Carolina Supreme Court asserted that the rule in Simmons was no longer applicable in South Carolina. (4) However, in Shafer the United States Supreme Court rebuked this conclusion, holding that the "Simmons rule" did indeed still apply to the new South Carolina sentencing scheme. (5)

   Unfortunately, in so doing the Court perpetuated the qualified role of Simmons. The Constitution, and fundamental notions of justice, would have been better served had the Court taken this opportunity to affirm an unqualified right of capital defendants to inform juries that they would be ineligible for parole if sentenced to life imprisonment. Extensive research, much of which was before the Court as it made its decision, has shown that capital jurors are in desperate need of being informed of the basic terms of their sentencing task. Where jurors are uninformed, imposition of the death sentence based in part on the arbitrary and capricious factor of juror ignorance seems inevitable. Furthermore, these problems are evident regardless of whether the prosecutor raises the issue of the defendant's future dangerousness, or whether the only alternative to death is life imprisonment without parole. An unqualified rule would also save time and effort at all levels in its application. These defects in the Simmons role are amply illustrated by the facts surrounding the Shafer decision itself. Finally, an unqualified role of disclosure would better comport with the Court's Eighth (6) and Fourteenth Amendment (7) jurisprudence concerning capital punishment. For all of these reasons, a capital defendant's prospective parole ineligibility under a life sentence should always be disclosed to the jury.

2. BACKGROUND

   The United States Supreme Court inaugurated its modern death penalty jurisprudence in 1972, with the landmark case Furman v. Georgia. (8) In that decision, the Court struck down the capital sentencing schemes of Georgia and Texas, both of which granted unfettered discretion to sentencing juries, for violating the Eighth Amendment's proscription of cruel and unusual punishment. (9) While two justices argued that capital punishment should be declared unconstitutional per se, (10) the holding ultimately struck down the specific capital sentencing schemes at issue because under them the death penalty was "pregnant with discrimination," (11) "wantonly ... and freakishly imposed," (12) and without a "meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it was not." (13) One of the primary rationales for the decision was the Court's recognition that the death penalty is unique in its moral significance and irrevocability, thus demanding a heightened degree of scrutiny under the Eighth and Fourteenth Amendments. (14) The Court also recognized that the constitutional proscription of cruel and unusual punishment was a dynamic one, evolving along with our society's standards of decency. (15) From these first principles, the Court embarked on the project of delimiting the constitutional requirement that administration of the death penalty be based on a fully and fairly reasoned determination that death is indeed the appropriate punishment in a particular case. (16)

   1. SUPREME COURT CASELAW BEFORE SIMMONS

      Just four years after Furman, the Court passed down five decisions assessing the constitutionality of various states' capital sentencing schemes. (17) In Gregg v. Georgia, (18) the Court found Georgia's reformed capital sentencing scheme to be compatible with the Eighth Amendment, (19) explicitly declaring that capital punishment was not per se unconstitutional. (20) The Court first noted that, because the constitutional proscription of cruel and unusual punishment is intrinsically tied to the community's evolving standards of decency, the Court should show considerable deference to the state legislative process as the states attempted to construct constitutionally valid capital sentencing schemes. (21) But the Court reaffirmed the principle of Furman that, because of the death penalty's unique severity, "it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner." (22)

      The Court then established some basic mechanisms by which a sentencing scheme could avoid such a result. (23) First, it noted that sentencing discretion should be "suitably directed and limited." (24) Second, the Court noted that the decision must be fully informed, including the consideration of evidence regarding the defendant's individual character and circumstances which might ordinarily be inadmissible. (25) To accomplish this, the Court strongly suggested the implementation of a bifurcated proceeding so that such evidence might be presented only after a determination of guilt has been made. (26) Since the new Georgia sentencing scheme did appropriately direct and limit sentencing decisions by directing the jurors to consider ten statutory aggravating circumstances, and employed a bifurcated proceeding in which the jury might fully consider any relevant mitigating evidence, (27) the Court held that it was constitutional. (28)

      In the companion case of Jurek v. Texas, (29) the Court also upheld the reformed capital sentencing scheme of Texas. (30) Of particular concern for the Court was the fact that the new Texas scheme required jurors to consider whether the defendant was likely to pose a "continuing threat to society." (31) Although acknowledging that such considerations were inherently speculative, the Court did not find this fact alone to cause a constitutional infirmity. (32) Indeed, the Court noted that "any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose." (33) The critical factor was whether the jury would be allowed to consider any relevant mitigating evidence the defendant might proffer that could affect that determination. (34) The Court noted that, "[it] is essential ... that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." (35) Since the new Texas sentencing scheme did allow for the unfettered consideration of the defendant's mitigating evidence in a bifurcated proceeding, the Court found that it was consistent with the demands of the Eighth and Fourteenth Amendments. (36)

      The Court further refined the principles established in Furman in the case of Woodson v. North Carolina. (37) The capital sentencing scheme at issue in that case made the death penalty mandatory for certain particular offenses. (38) The Court concluded that the scheme violated the Eighth and Fourteenth Amendments because it merely "papered over" the problems exposed in Furman. (39) Specifically, the Court recognized that under such mandatory schemes, jurors generally tailored their finding of guilt to the offense that carried the penalty they thought appropriate. (40) Particularly troubling for the Court was the fact that the sentencing scheme did not allow for an individualized assessment of the character and history of the defendant and the circumstances of his crime. (41) The Court concluded that such an assessment was necessary under the Eighth Amendment in capital cases, because the finality of the sentence demanded a heightened "need for reliability in the determination that death is the appropriate punishment in a specific case." (42) Because North Carolina's sentencing scheme did not allow for such a fully informed and individualized assessment, it was struck down. (43)

      The Court further developed the principles of its death penalty jurisprudence the following year in Gardner v. Florida. (44) That case concerned the imposition of the death penalty by a trial judge who relied in part on a presentence investigation report that was not fully disclosed to either the defense counsel or the prosecutor. (45) The Court once again cited to the moral severity and finality of capital punishment as considerations which demanded that "any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." (46) The Court also noted that its prior decisions had scrutinized not only specific sentencing results, but also the procedures which led to them. (47) Thus, the Court concluded that "petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." (48)

      The Court next dealt with the requirements of the Eighth Amendment in the context of capital sentencing in Lockett v. Ohio. (49) In that case, the Court dealt with a sentencing scheme that limited the sentencer's consideration of evidence concerning the defendant's history and character and the circumstances of the offense. (50) The Court reaffirmed the Eighth Amendment principle that capital sentencing decisions must be based on an individualized assessment which fully takes into account, as mitigating factors, any evidence the defense proffers concerning the circumstances of the...