Eighth Amendment - sentencer discretion in capital sentencing schemes.

• Author: Kessler, Daryl I.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Arave v. Creech,(1) the United States Supreme Court considered the constitutionality of a statutory aggravating circumstance to be considered by Idaho judges in capital cases. In accordance with its jurisprudence in this area, the Court did not examine the circumstance on its face, which allowed the death penalty to be imposed if the murderer exhibited "utter disregard for human life." Rather, the Court considered the Idaho Supreme Court's "narrowing construction," which, the Court found, applied the "utter disregard" aggravating circumstance exclusively to "cold-blooded pitiless slayer[s]."(2) The Court held that this narrowing construction of the aggravating circumstance both sufficiently channeled the sentencing judge's discretion and genuinely narrowed the class of persons eligible for capital punishment and therefore precluded arbitrary and capricious administration of the death penalty.(3) Hence, the Idaho statute did not violate the Eighth Amendment's prohibition against cruel and unusual punishment.(4)

   This Note examines the development of the Supreme Court's jurisprudence concerning sentencer discretion in state capital sentencing schemes. This Note argues that, in Arave, the Supreme Court took the unprecedented step of further channeling a state's narrowing construction of an aggravating circumstance and, as a result, approved an aggravating circumstance that provides less guidance to a sentencer than any previously validated by the Court. This Note concludes that the Court deviated from its own mandate that a state's death penalty sentencing scheme both provide clear and objective standards to the sentencer, and enable the sentencer to distinguish those who deserve the death penalty from those who do not.

2. BACKGROUND

   In Furman v. Georgia,(5) the United States Supreme Court held that the death penalty did not, per se, violate the Eighth Amendment's prohibition against cruel and unusual punishment.(6) However, in Furman the Court established that a state's death penalty statute did violate the Eighth Amendment's prohibition if the statute granted too much discretion to a sentencer.(7) The Furman decision was splintered, but the fundamental premise that emerged from the various opinions was that the death penalty could not be imposed under sentencing procedures that granted untrammeled discretion to the sentencer and therefore created a risk that the death penalty would be administered in an arbitrary and capricious manner.(8) The Supreme Court currently interprets Furman and the cases that followed it as requiring a two-pronged inquiry into a state's capital sentencing procedures: (1) Does the state's capital sentencing procedure adequately limit the sentencer's discretion so as to minimize the risk of arbitrary and capricious administration of the death penalty? (2) Does the state's capital sentencing scheme genuinely narrow the class of defendants eligible for the death penalty?(9)

   1. SUFFICIENT NARROWING OF A SENTENCER'S DISCRETION

      While the United States Supreme Court has held that a state's capital sentencing scheme must sufficiently channel a sentencer's discretion, it has never pinpointed the amount of discretion that constitutionally can be granted to a sentencer.(10) Indeed, the Court has struggled for years to identify such a standard.

      1. The Inquiry Into Permissible Discretion

         In attempting sufficiently to channel sentencers' discretion after Furman, the majority of states that allowed the death penalty adopted lists of aggravating circumstances to be considered before a court could impose a sentence of death.(11) Soon thereafter, the Supreme Court was called upon to define the amount of sentencer discretion permissible in aggravating circumstances.

         In struggling to identify an acceptable amount of discretion, the Court, in Gregg v. Georgia,(12) first recognized that a state court's narrowing construction of an aggravating circumstance may be considered if a state's capital sentencing statute, on its face, allows for too much sentencer discretion.(13) In that case, the Court addressed the constitutionality of Georgia's sentencing scheme, which required that the jury consider ten statutory aggravating circumstances, at least one of which had to be found to exist beyond a reasonable doubt before a death sentence could be imposed.(14) Although the petitioner did not claim that the jury relied on a vague or overbroad provision, the petitioner looked at the sentencing system as a whole, arguing that the circumstances were overly broad and too vague.(15) The petitioner explicitly attacked the aggravating circumstance that authorized the imposition of the death penalty if the murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.'"(16) The petitioner claimed that this phrase was a catch-all that could be imposed in any murder case and therefore violated the Supreme Court's mandate in Furman, insofar as it allowed arbitrary implementation of the death penalty.(17)

         In holding that Georgia's "wantonly vile" aggravating circumstance was not necessarily unconstitutionally vague, the Court agreed with the petitioner that any murder might involve depravity of mind or an aggravated battery.(18) However, the Court found that the language in question would not necessarily be construed in so broad a fashion by Georgia courts and that there was no reason to assume that the Georgia Supreme Court would adopt such an open-ended definition.(19) Thus, in Gregg, the Court indicated that if a state's sentencing scheme, on its face, did not sufficiently channel a sentencer's discretion, the state's courts could adopt a narrowing construction and therefore "save" the statute.(20)

         When the Georgia sentencing scheme was revisited just four years later in Godfrey v. Georgia,(21) the Court found the aggravating circumstance considered in Gregg to be unconstitutionally vague as applied by the trial court.(22) Although the Court noted, as it had in Gregg, that the circumstance on its face did not preclude arbitrary and capricious infliction of the death penalty,(23) the Court recognized that Georgia's courts had sufficiently narrowed the scope of the circumstance in question in two prior cases.(24) Nonetheless, the Court held the circumstance unconstitutional as applied because the trial judge's sentencing instructions to the jury failed to articulate the narrowing construction and therefore did not sufficiently narrow the circumstance.(25)

         Thus, in Godfrey, the Court again recognized that a state supreme court can narrow the scope of a circumstance that is unconstitutionally vague on its face.(26) Additionally, the Godfrey Court cautioned that, in order to save the circumstance from constitutional infirmity, the trial court must instruct the jury as to the narrowed construction.(27)

         In Walton v. Arizona,(28) the Court clearly articulated the inquiry a federal court must make when considering a state's death penalty statute:

         [The federal court] must first determine whether the statutory language

         defining the circumstance is itself too vague to provide any guidance

         to the sentencer. If so, then the federal court must determine

         whether the state courts have further defined the vague terms and, if

         they have done so, whether those definitions are constitutionally sufficient,

         i.e., whether they provide some guidance to the sentencer.(29)

         In Walton, the petitioner challenged the constitutionality of an Arizona aggravating circumstance that charged the sentencer to consider whether a murder was committed "|in an especially heinous, cruel, or depraved manner.'"(30) The Court held that, although the circumstance on its own was unconstitutionally vague, Arizona courts had sufficiently channeled the circumstance by declaring that "|a crime [was] committed in an especially cruel manner when the perpetrator inflict[ed] mental anguish or physical abuse before the victim's death,' and that |[m]ental anguish include[d] a victim's uncertainty as to his ultimate fate.'"(31) Likewise, the Arizona Supreme Court found that a murder was committed in an "especially |depraved' manner when the perpetrator |relishe[d] the murder, evidencing debasement or perversion,' or |show[ed] an indifference to the suffering of the victim and evidence[d] a sense of pleasure' in the killing."(32) The Court found that, although "the proper degree of definition of an aggravating factor ... is not susceptible of mathematical precision," the Arizona narrowing construction sufficiently channeled the sentencer's discretion.(33)

         The inquiry that a federal court must undertake, therefore, is quite clear: as long as a state's courts sufficiently narrow a vague aggravating circumstance and the sentencing jury is informed as to this narrowing construction, the sentencer's discretion has been sufficiently channeled.(34) However, the Court is still left with a difficult question: When is the guidance offered a sentencer--either by a statutory aggravating circumstance or by a narrowing construction--"sufficient"? The Court has wrestled with this question since Furman.

      2. The Sufficient Channeling of Discretion

         Since the inquiry into whether an aggravating circumstance or a narrowing construction sufficiently channels a sentencer's discretion is necessarily done on a case-by-case basis, the United States Supreme Court, on a number of occasions, has reviewed the aggravating circumstances and/or the narrowing constructions of state capital sentencing schemes. A brief overview of a number of these decisions provides insight into the level of definition or channeling the Court deems "sufficient."

         In Proffitt v. Florida,(35) the petitioner challenged the constitutionality of Florida's capital sentencing scheme, which required the sentencing judge to determine whether the capital crime committed was "|especially heinous, atrocious, or cruel.'"(36) The...