The failed case for Eighth Amendment regulation of the capital-sentencing trial.

• Author: Howe, Scott W.

Since banning standardless capital sentencing as "cruel and unusual punishment" in Furman v. Georgia,(1) the Supreme Court has regulated capital-sentencing procedures under the Eighth Amendment.(2) Many who have written about these efforts have disapproved.(3) One group of critics has argued for additional or more intensive regulation. These critics have focused on the Court's failure to achieve its stated goal of consistency in capital sentencing.(4) A different group of critics has lamented the perceived side effects of the Court's regulatory efforts. Such critics have complained, for example, that the Court has unnecessarily disrupted state efforts to impose the death penalty(5) or has conveyed, through the justices' frequent failure to find consensus, a poor message regarding our ability to reconcile social conflicts.(6) Of the Court's many critics on capital sentencing, however, only a few, at least in recent years, have challenged the Court's basic decision to regulate capital sentencing under the Eighth Amendment.(7)

The scholars who have challenged the propriety of the Court's effort to govern capital sentencing have typically relied on formalist attacks that concede no ground for Eighth Amendment regulation. For example, Professor Raoul Berger, invoking the duty to follow original intent, has emphasized that the Cruel and Unusual Punishments Clause was not understood by its promulgators to govern the process for selecting which capital offenders will die.(8) Similarly, Justice Thomas has concluded that the Eighth Amendment was originally intended only to place substantive limitations on punishments and that the Court should not have abandoned that original understanding by regulating capital-sentencing procedures.(9) Chief justice Rehnquist has reached a similar conclusion that is based, in part, on a view of the plain meaning of the Cruel and Unusual Punishments Clause.(10)

This Article rejects the role of the Court in regulating capital sentencing under the Eighth Amendment on prudential grounds rather than based on formalist views about the original understanding or plain meaning of the prohibition against "cruel and unusual punishments." This Article argues that the Eighth Amendment speaks to the question of who can receive the death penalty and does so in terms that should guide the capital sentencer. The Eighth Amendment does not call for consistency among capital offenders, but rather speaks to the substantive standard that defines who may be sentenced to death. The relevant Eighth Amendment command is to avoid imposing the death penalty on those who do not deserve that sanction. Nonetheless, this Article demonstrates that the Supreme Court lacks the capacity to translate this general Eighth Amendment principle into rules for conducting capital-sentencing trials.(11)

This Article advocates Eighth Amendment restrictions on determining who is subject to the death penalty. It concludes, however, that the Court should only draw categorical lines separating death-eligible crimes and offenders on the one hand, and crimes and offenders for which the death penalty is per se improper on the other hand. Rape, for example, is not a death-eligible crime. Similarly, seventeen-year-old offenders are not subject to the death penalty. These are the sorts of conclusions that the Court could legitimately articulate and enforce under the deserts limitation in the Eighth Amendment.

The problem for the Court in pursuing the deserts limitation as a basis for regulating the capital-sentencing trial stems from the inability to identify with substantial precision how to measure offender deserts. The Court cannot define the weight that the capital sentencer should accord various evidentiary factors. Nor can the Court define with much precision what evidence the capital sentencer should consider. The societal consensus in favor of the deserts limitation does not translate into rules at these more exacting levels. Yet, to enforce the deserts limitation at the capital-sentencing trial requires the Court to articulate relatively precise rules. If the Court cannot provide specifics, the Eighth Amendment can no longer justify preventing legislatures from specifying the rules.

My demonstration of the inevitability of failure in attempts at Eighth Amendment regulation of capital-sentencing trials proceeds in four stages. Part I briefly describes the development and contours of the Supreme Court's current capital-sentencing doctrine. Part II then assesses the "nonarbitrariness" or "consistency" theory usually offered by the Court as the justification for this doctrine. The Article demonstrates not only that this theory fails to explain the Court's capital-sentencing holdings, but also, more importantly, that the theory lacks a grounding in the Eighth Amendment. Part III assesses the deserts-limitation principle as a basis for capital-sentencing regulation, and demonstrates that this principle explains certain aspects of the Court's doctrine better than the nonarbitrariness theory. The deserts limitation, stated broadly, also conforms with the Eighth Amendment. The Article argues, however, that the principle does not translate into the sort of rules with which the Court can sensibly regulate capital-sentencing trials. Part IV proposes a limited use of the deserts-limitation principle to articulate bright-line rules defining the boundaries of constitutional application of the death penalty. The Article concludes that the Court has appropriately employed the Eighth Amendment on occasion to promulgate these kinds of restrictions and that its approach to regulating capital punishment should focus on expanding these protections.

1. Furman and its Fruits: Consistency as the Goal

   Considered as a prelude to the regulation of capital-sentencing trials, the decision in Furman v. Georgia(12) was spectacularly flawed. If the prohibition on cruel and unusual punishments was used appropriately to narrow the number of death-eligible crimes and offenders, standardless capital sentencing should not violate the Eighth Amendment. Indeed, the Court's current doctrine has effectively endorsed standardless discretion by the sentencer at the ultimate stage of choosing between imprisonment and death. The inability to distinguish a just from an unjust death sentence has prevented the Court from prescribing standards that actually guide the sentencer's decision. Yet this very inability to define a just death sentence calls into question the basic legitimacy of the Court's project to regulate capital-sentencing trials under the Eighth Amendment.

   1. Furman and the 1976 Cases

      The meaning of the per curiam order in Furman is elusive. In Furman, the Supreme Court, for the first time, used the Eighth Amendment to strike down a capital sentence.(13) The splintered, five-justice majority clearly condemned standardless capital sentencing. However, the majority offered little guidance regarding what sort of sentencing systems would pass muster. Two majority Justices--Brennan and Marshall--believed the death penalty unconstitutional in all circumstances.(14) The three other majority Justices--Douglas, Stewart, and White--did little to clarify what kind of systems the Eighth Amendment would allow, beyond separately expressing their dissatisfaction with standardless sentencing schemes. Each of these three justices appeared to strike a blow against "arbitrary" and "capricious" sentencing systems,(15) but that prohibition carried an accordion-like range of potential meanings. Were states that desired to use the death penalty required to make it mandatory for all capital offenders? Were they instead only required to provide relatively precise standards to govern the capital-sentencing decision? Or could they simply narrow the group subject to the death penalty while granting the sentencer unfettered discretion to impose either death or imprisonment for that smaller group?

      Four years after Furman, the Court revisited the question of Furman's meaning in a well-known quintet of decisions.(16) Nearly two-thirds of the states had promptly enacted new death-penalty statutes after 1972.(17) Their responses to Furman were of two kinds. The majority of these states adopted legislation making the death penalty mandatory upon conviction for a capital offense.(18) The minority adopted statutes providing for a capital-sentencing hearing with standards.(19) In the 1976 cases, the Supreme Court upheld statutes from Florida, Georgia, and Texas that provided for capital-sentencing hearings with standards.(20) At the same time, the Court struck down statutes from Louisiana and North Carolina mandating the death penalty upon conviction.(21)

      At the rhetorical level, the opinions supporting these decisions portrayed Furman's holding as requiring that capital sentences be administered to promote consistency. For example, in upholding the Georgia statute in Gregg v. Georgia, Justice Stewart, writing for himself and two other justices, reiterated that Furman stood for the proposition that the death penalty "could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner."(22) Justice White, in endorsing the Georgia statute, implied that Furman had required that a capital-sentencing system "result in death sentences being imposed with reasonable consistency."(23) Likewise, in Woodson v. North Carolina, Justice Stewart, for a plurality, asserted that Furman had required that states replace "arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death."(24) This kind of language in the opinions in the 1976 cases constructed a view that Furman required substantial equality in the distribution of death sentences among convicted capital offenders.(25)

      At first blush, the Court's approval of the statutes from...