In defense of specific proportionality review.

• Author: Mandery, Evan J.
• Position: Death penalty cases - Response to Barry Latzer, Albany Law Review, vol 64, p. 1161, 2001

1. INTRODUCTION

   Last year in this space my colleague Barry Latzer argued that comparative proportionality review in death penalty cases has proven a failure. (1) By "[c]omparative proportionality review," Professor Latzer means "whether a death sentence is consistent with the sentences imposed in factually similar cases." (2) Consistency is defined by the relative culpability of defendants. (3) Under comparative review, a defendant argues that his sentence should be reduced because other equally or more blameworthy defendants have not been treated as harshly. (4) Comparative review is distinguished from "inherent" proportionality review, in which courts "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." (5)

   According to Professor Latzer, comparative review is undesirable in theory because it unjustifiably allows capital defendants the opportunity--unique among criminal defendants--to claim that they should not be punished in a particular manner because some others in similar situations have not been punished in the same way. (6) And it assigns to courts an impossible task: assessing the relative culpability of defendants. Practical experience only strengthens these intuitions. The few states that have engaged in proportionality review in earnest, most notably New Jersey, have only demonstrated the difficulty of developing any sort of objective model to weigh the relative culpability of defendants. (7) The whole endeavor, he says, has been nothing more than a waste of time and money. (8)

   Professor Latzer's argument has surface appeal. There is no other context in which criminal defendants may seek redress on the basis of disproportionality of culpability. (9) A rapist sentenced to a prison term of a certain length may not, for example, seek to have his sentence reduced on the grounds that some other rapists have acted in a more reprehensible manner and been sentenced to shorter terms.

   It is not readily apparent how one would make a meaningful comparison of reprehensibility. Some factors incident to a crime seem more objective than others. One could, for example, compare the relative degrees of violence involved in separate offenses with some measure of certainty. But to gain a full picture of the culpability of an offender, questions independent of the offense itself need to be asked: How much education did the defendant possess? Were they desensitized to violence by the peculiarities of their childhood? What motivated them to commit this particular crime? Weighing the relative moral responsibility of two defendants on the basis of this host of factors seems daunting at best. How is one supposed to compare the rapist who acted more violently but had a troubled childhood and some mental impairment with the less-violent rapist who had fine parents and went to good schools? One may be treated more leniently than the other, but it seems impossible to say with any conviction that the other therefore deserves to be treated in the same way. This is Professor Latzer's point.

   Further bolstering Professor Latzer's position, the death-is-different arguments do not seem as useful in this context as they do in others. There is always some chance that a robber or rapist has been wrongly convicted, yet this does not deter the criminal justice system from sending them to jail with impunity. Death is different, abolitionists say with some force. It is one thing to sentence defendants to jail terms knowing that a few may be innocent, and quite another to sentence them to die. Death is irreversible; the wrong can never be undone. (10) The argument does not work so well with proportionality review.

   So it would go: there is always some chance that a robber or rapist has been given a longer sentence than someone more culpable than he, yet this does not deter the criminal justice system from sentencing them with impunity. Death is different, though. It is one thing to sentence ordinary defendants to jail terms knowing that other defendants may be more deserving of longer sentences, and quite another to sentence someone to die knowing that other more blameworthy defendants exist. The argument works poorly. It seems difficult to maintain that a necessary element of a just capital punishment system is that among all those eligible for death, the system execute only the most reprehensible, and not anyone less reprehensible than anyone else who is spared. A fairer proposition would seem to be that it should execute only people who are highly reprehensible which, except for the occasional error, the existing system seems to do. (11) Again, Professor Latzer's point.

   But it is not obvious that the aim of comparative proportionality review is to measure the relative blameworthiness of capital defendants, and once this definition is abandoned, many of Professor Latzer's arguments become more difficult to defend. "Comparative proportionality review" is Professor Latzer's term; (12) so too, the notion that the object of this review is to compare the relative blameworthiness of those sentenced to die. (13) It is a construct.

   Professor Latzer points to Pulley v. Harris (14) as the clearest expression of the notion of comparative proportionality review as an independent concept. Pulley is the seminal case on proportionality review. (15) Many state legislatures, and Professor Latzer, interpret it as holding that proportionality review is not a required element of a constitutional sentencing scheme. (16) Whether this accurately states the case is open to debate, (17) but it is clear that the Pulley Court never used the term "comparative" review. And it never suggested that the basis of this review was an assessment of relative blameworthiness. The Court simply said that the type of review sought by Harris was "different":

   The proportionality review sought by Harris ... is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime. (18) The question is whether the difference contemplated by the Court is one of kind or degree. Professor Latzer would no doubt rely on the clause following "because" in the last sentence of the preceding passage from Pulley in characterizing the difference between traditional proportionality review and the kind of review sought by Harris as a difference of kind. This argument would have force if "inherent" or "traditional" proportionality review, as the Pulley Court terms it, were conducted on the basis of moral judgments about the fitness of the death penalty for a particular type of crime. There would thus be two distinct types of review, different in kind: inherent review, based on a philosophical inquiry into the appropriateness of the death penalty for a type of crime, and comparative review, based on an empirical inquiry into whether the punishment was meted out in an even-handed manner. But this is not the methodology of inherent review that has evolved in Eighth Amendment jurisprudence. In determining whether a punishment is inherently proportionate, courts ask an empirical question: whether standards of decency have evolved to the point where a particular punishment is regarded as "cruel and unusual." (19) Standards of decency are measured, varyingly, by public opinion, pronouncements of state legislatures, and, notably, juries. (20) The difference between inherent review and the sort of review sought by Harris thus cannot be methodological.

   The emphasis in the critical passage in Pulley is more reasonably placed on the phrase "in a particular case." (21) On this reading Harris was not seeking a review different in kind from traditional inherent proportionality review, he was rather seeking a more specific review of the appropriateness of death as a penalty for him--a review based on the facts of his particular case. An alternative definition of the sort of review sought by Harris presents itself: "Specific" proportionality review seeks to determine whether standards of decency, as measured by the treatment of other similarly situated defendants, have evolved to the point where execution would be inappropriate on the peculiarities of a particular defendant's case.

   Three important facets distinguish specific proportionality review from comparative proportionality review. First, a capital defendant pursuing redress through specific proportionality review seeks not to have his sentence reduced because others have been better treated. Rather, he points to the better treatment of others as evidence that standards of decency regard death as an inappropriate punishment on the facts of his case. The goal of comparative proportionality review is equivalence. The goal of specific proportionality review is to prevent the aberrational execution of a defendant where standards of decency have evolved to condemn such an act.

   The first point suggests the second. Specific proportionality review narrows the focus of the lens through which a defendant is examined. Comparative proportionality review operates under the premise that all perpetrators of a particular type of crime are death-eligible; the question is whether a particular defendant has been treated fairly as compared to other similarly situated defendants. (22) For example, a murderer who admits guilt and has a history of drug abuse is relevantly categorized as a murderer. Operating on the presumption that the execution of anyone belonging to the universe of murderers is just, the court engaging in comparative review asks whether this defendant has been treated similarly to other murderers who have admitted guilt and possess histories of drug abuse. (23)...