Federalism and the death penalty.

• Author: Mandery, Evan J.
• Position: Perspectives: Federal Jurisprudence, State Autonomy

The Supreme Court's commitment to federalism is nowhere stronger than in the jurisprudence of the death penalty, but the traditional justifications for state rights ring hollow in this context.

It is axiomatic in the jurisprudence of the death penalty that it is left to the states to determine, within bounds of the U.S. Constitution, the contours of sentencing procedures. (1) The Court articulated this premise in Gregg v. Georgia (2) and has committed to it a host of times since. (3) It has led the Court to uphold a wide range of procedural choices by the states. State legislatures have free reign to choose what factors should count as death qualifying, or state legislatures should establish a scheme that does not rely upon aggravating factors at all. (4) The state may include a proportionality review if it sees fit, (5) or it can assign the ultimate responsibility for the sentencing decision to the judge or the jury. (6)

The traditional and most commonly offered policy justification of federalism is that it fosters innovation by state governments. Justice Brandeis wrote in 1932: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (7) This famous defense of states as "laboratories of democracy" has been quoted in more than three dozen Supreme Court cases. (8) It may offer a sound justification to explain the history of social and economic development in the United States, but its good sense is less obvious in the context of the death penalty.

The essential ingredient of a constitutional death-sentencing scheme is that it incorporate some mechanism for identifying the worst offenders. Most states accomplish this by enumerating a set of death-qualifying aggravating factors. (9) Federalism dictates that the states decide for themselves which factors should count as aggravating, and the Supreme Court has been deferential to their choices. (10) In practice, though, states have decided upon aggravating factors that are sometimes in tension with one another. For example, in several states it is an aggravating factor to torture the victim. (11) On the other hand, in Florida, among other states, it is an aggravating factor if the murder is "committed in a cold, calculated, and premeditated manner without any pretense or moral or legal justification." (12) States like these are drawing different conclusions between the manner in which a murder is committed and the culpability of the offender. Some states say that quick, cold-blooded murderers are, on the whole, more culpable than other murderers; other states say the opposite. The problem is this: Only one answer can be...