The failure of comparative proportionality review of capital cases (with lessons from New Jersey).

• Author: Latzer, Barry
• Position: Death penalty cases

1. INTRODUCTION

   Comparative proportionality review is an appellate proceeding peculiar to capital cases.(1) It is provided for, primarily by statute, in twenty (out of thirty-eight) death penalty states.(2) Comparative proportionality review could result in the reversal of a death sentence on grounds of failure to impose the same sentence on other similarly situated defendants. To the most dogmatic opponents of capital punishment, comparative review is a presumptively valid weapon in the holy war.(3) Even to the less doctrinaire, it offers at least a surface plausibility: after all, like cases should be treated alike. If only one out of 100 similar cases results in a death sentence, that sentence certainly seems, on the face of it, arbitrary, irrational, and (in the hyperbole common to death penalty discourse) capricious.(4)

   The contention of this article is that, contrary to conventional wisdom, comparative proportionality review is constitutionally unwarranted, methodologically unsound, and theoretically incoherent, and, therefore, should be abolished. This is demonstrated in three sections, each of which focuses on a different flaw.

   After an examination of the nature of proportionality review, Part Two will discuss the erosion of constitutional support for the process. The United States Supreme Court began the modern capital jurisprudence era with a profound error, an error that provided the impetus for proportionality review. Furman v. Georgia(5) strongly suggested that the Eighth Amendment embodies a principle of prosecutorial evenhandedness, i.e., that singling out death for some, but not all, blameworthy defendants, is cruel and unusual punishment.(6) This implied that some sort of review was constitutionally required to ensure evenhandedness in the administration of the death penalty. Gregg v. Georgia(7) reinforced this conclusion by endorsing Georgia's proportionality review statute.(8) Eight years later, however, the Court reversed course; Pulley v. Harris(9) acknowledged that comparative review has no Eighth Amendment foundation.

   Pulley created an apparent contradiction. On the one hand, in a line of cases starting with Coker v. Georgia,(10) the Supreme Court took the position that, at least for capital cases, the Cruel and Unusual Punishments Clause requires proportionate punishment.(11) On the other hand, as Pulley made abundantly clear, comparative review is not required. Part Two of this Article suggests the solution. Comparative review, deconstitutionalized by Pulley, should be abolished and replaced by more traditional proportionality review of capital cases, what I will call "inherent" or "retributive" proportionality review. Such review may properly be used as a check on the legislature should it be tempted to authorize the death penalty for categories of crimes or classes of defendants that, by contemporary standards of decency, do not deserve such harsh punishment. To take a controversial example, a court might hold that death for certain non-homicidal crimes, such as the rape of young children, is disproportionate.(12) Unlike comparative review, however, inherent proportionality review is a test of retribution, not of evenhandedness.(13) It does not demand--nor does the Constitution--that courts engage in the hopeless task of determining whether equally deserving criminals were treated alike.

   The difficulties of administering comparative review are demonstrated in Part Three. Here we focus on the New Jersey Supreme Court, a tribunal dedicated to equalizing the treatment of capital murderers. Under the tutelage of Professor David Baldus, the New Jersey court committed itself to the most quantitative proportionality review in the United States. An elaborate, time-consuming, and costly methodology was developed--with little to show for the effort. All of the state's death penalty cases, and even hundreds of cases deemed "death-eligible" (though not capitally charged by prosecutors) were collected, scrutinized, coded, and statistically compared. Although the statistical analyses often indicated that capital punishment would be excessive, proportionality review in New Jersey has not resulted in the reversal of a single death sentence.

   These quantitative methods promised a more objective, less value-laden, assessment of death penalty decisions--a promise that has never been kept. Indeed, given the inherent limitations of social science, it is clear that these methods were invested with wholly unrealistic expectations from the start. After nearly a decade of controversy, embroiling the state's high court in disputes with the governor, legislature, and state prosecutors, the process is beginning to implode. With each new proportionality review case, the New Jersey Supreme Court eliminates another component of the procedure. Yet the court clings stubbornly to the illusion that a mathematical formula will ensure equal treatment.

   Part Four of this Article demonstrates that the defects in comparative review go beyond misguided methods or lack of constitutional underpinnings. The concept is inherently flawed because it is premised on a unidimensional assessment of cases: an assessment on the basis of reprehensibility alone. The basic postulate of proportionality review is that like cases should be treated alike. "Like cases" is defined in terms of moral equivalency, i.e., cases are alike where the crimes and the criminals are equally blameworthy (or, as these are capital cases, equally "deathworthy"). The problem is that such a reprehensibility standard is often in conflict with the everyday realities of prosecution.

   Consider this typical scenario. Killer A gets death. Equally odious Killer B gets life because: (1) B turns state's evidence, or (2) A's witnesses are more persuasive, or (3) B's prosecutor doesn't believe in the death penalty, or (4) B's prosecutor simply cannot afford to tie up his best assistant in a lengthy capital case. According to the "like cases" rule, inasmuch as A and B are equally deathworthy, A's sentence is disproportionate to B's. On proportionality review, given enough cases like B's, A's death sentence ought to be reversed. Such a decision, however, will strike all but the most obdurate opponents of capital punishment as odd if not perverse. Most people, I suspect, would say that B was simply lucky and A wasn't. A deserves his punishment even if B (or ninety-nine defendants like B) gets a break.

   For millennia, mankind has sought an ideal criminal justice system in which the punishment will be perfectly suited to the crime and all of the deserving will be treated alike.(14) It remains a worthy goal. So long as prosecutors do not rely exclusively on reprehensibility considerations, however, such a standard is hopelessly unrealistic. No distribution of penal sanctions can meet such a test, and, except for the death penalty, I have never seen a serious suggestion that a punishment itself be abolished on this account. Although death is often said to be different enough from other punishments to warrant higher standards, there is no good reason to expect that death penalties could or should be meted out more equally than all other sentences.(15) Indeed, such a demand for equal justice is as pernicious as it is pointless, since the remission of deserved death sentences undermines retributive justice.

   Despite its manifest flaws, proportionality review is strongly supported by the academy.(16) In the courts, however, the trend is toward dilution, if not outright abolition.(17) Even in New Jersey, the downsizing of proportionality review seems to have begun.(18) This is all to the good, but outright abolition would be better. There is simply no good reason to continue comparative review of capital cases. Comparison of capital cases drains judicial resources, diverts the focus of the courts, distends the post-conviction process, and denies the imposition of justice upon the guilty--all in pursuit of a chimera without basis in the Constitution.

2. PROPORTIONALITY REVIEW AND THE CONSTITUTION

   "Proportionality review" refers to that part of the post-conviction process in a capital case in which an appeals court (usually the state court of last resort) determines whether a death sentence is proportionate to the crime and the offender. A sentence found to be disproportionate or excessive will, of course, be reversed. This rather bland definition masks a great deal of uncertainty over the nature and requirements of this review. In Pulley v. Harris,(19) the Supreme Court identified two types of proportionality review: traditional analysis of inherent disproportionality and comparative analysis of the kind Harris unsuccessfully sought to constitutionalize.(20) "Traditionally," wrote Justice White for the Court,

   "proportionality" has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime.(21) I will refer to this type of review as "inherent" or "retributive," as it seeks to determine the intrinsic deathworthiness of a category of crimes or class of defendants without regard to consistency or evenhandedness in the application of the death penalty. The Supreme Court engaged in this kind of review when it asked whether the death penalty was proportionate punishment for the crime of rape(22) and for mentally retarded murderers.(23) Inherent review serves primarily as a check upon the legislature, i.e., it is aimed at legislative enactments imposing the death penalty on certain types of crime (felony-murder, for example), or on certain classes of defendants (e.g., juveniles).(24) It is not...