The proportionality review of capital cases by state high courts after Gregg: only "the appearance of justice."

Author:Bienen, Leigh B.

Much of the discussion is designed to explain the process of record-gatrhering and the methods of analyses, both of science and law, that can be used to conduct proportionality review and to assess the relevance of the data to system-wide claims of unconstitutional infliction of the death penalty ....

Although we recognize that proportionality is not a scientific determination, we have attempted to make our determination as precise in terms of their bases and reasoning and as objective as possible. We have used scientific and statistical measures, when helpful, although we recognize that a value judgment is built into practically every measurement. A life is at stake, and although some degree of subjective value judgment may be required, we have attempted to make those judgments explicit so that they can be analyzed and tested against whatever objective measurements are applicable.)


In the twenty years after the United States Supreme Court approved the parameters for the reimposition of capital punishment in Gregg v. Georgia(2) and its accompanying cases,3 state and federal courts have been presented with constitutional challenges to capital punishment based upon statistical evidence of racial and geographic disparities in state capital case processing systems.(4) These challenges are supported by the Supreme Court decisions in Furman v. Georgia(5) and Coker v. Georgia.(6) which both implied, without explicitly holding, that racially- and geographically-based disparities in the implementation of capital punishment were fundamental constitutional infirmities.

The majority of state legislatures and supreme courts took the United States Supreme Court at its word and believed that Gregg meant what it said: newly revised state capital punishment systems were going to be different from the old systems, and one important difference would be the requirement of proportionality review. Gregg in the context of Furman strongly implied that a state capital punishment scheme would be declared unconstitutional if it exhibited the patterns of disparity declared unconstitutional in Furman.

The post-Gregg statutes enacted by various states addressed the structure and substance of jury decision-making at trial.(7) As an additional safeguard, Gregg endorsed Georgia's statutory requirement of proportionality review,(8) a new appellate procedure designed to assure that the imposition of the death sentence under the revised statutes would not be characterized by the fundamental flaw of arbitrariness which made the former system unjust.(9) Proportionality review is the comparison of a death sentence with sentences imposed in similar cases, to determine whether the sentence is fair or proportionate. The principle is that the death sentence is disproportionate if other defendants in similar cases are not sentenced to death. This statutory mandate can implicate broad principles of federal and state constitutional law and trigger the implementation of an empirical examination of the state's entire capital case processing system, raising issues of racial and economic disparity and questioning the charging practices and autonomy of local prosecutors. Or, it can result in no more than a conclusory sentence tacked on to the end of a state high court's affirmance of a death sentence.

The increasing use of proportionality review by state high courts in the period 19776-1991 mirrored tremendous changes in the jurisprudence and politics of capital punishment nationally: the withdrawal of federal courts, especially the United States Supreme Court, from the death penalty arena; increased political pressure upon state judicial institutions from both state legislatures and the electorate;(10) and polarized debate within the courts themselves. How state high courts approach proportionality review expresses a great deal about how these courts see themselves and their role within their own states and in the national criminal justice system.(11)

But despite the mandate given them by the absence of the United States Supreme Court on these issues, many state high courts ignored or dismissed statistical evidence of systemic disparities in capital case processing. Some courts held that such evidence could not even be presented to a state appellate court, neither within the context of proportionality review, nor as part of the direct appeal of an individual death sentence. Some members of these state high courts expressed the view that the issue of racial and geographic disparities in capital case processing was not justiciable if these disparities were caused by prosecutorial discretion, since prosecutorial decision-making is not subject to judicial review. In several jurisdictions the question provoked dissension among the justices and conflict between the state high court and the state legislature. Other state high court justices believed these considerations went to the heart of proportionality review.

Were state supreme courts only interested in maintaining the "appearance of justice"(12) on the issue of racial and geographic disparities in capital sentencing?(13) After the United States Supreme Court held in Pulley v. Harris(14) that proportionality review was not mandated by federal constitutional principles, the majority of state high courts reduced proportionality review to a perfunctory exercise.(15) Perhaps state high courts were simply responding to more generalized political pressures to uphold death sentences.(16) When the United States Supreme Court declared in McCleskey v. Kemp(17) that evidence of statistically significant racial disparities based on the race of the victim was not a sufficient ground for declaring the Georgia capital punishment system unconstitutional, many state high courts used the federal case as an excuse not to consider constitutional challenges to capital punishment based on statistical evidence of racial or geographical disparities in any context, undermining the entire foundation of proportionality review as defined in Gregg.

Is the "appearance of justice" the same as the doing of justice?(18) The just result in these cases may not be the reversal of death sentences, but rather the establishment and maintenance of systematic and meaningful proportionality review. The opinions show many state high courts to be troubled about their responsibilities, suspicious of statistical evidence, and uneasy about the reliability of the factual record documenting disparities. In such states, the opinions illustrate the tension created when a law-and-order appellate court, whose judges are often mindful of their own retention, is both presented with a clearly guilty defendant and evidence of system wide disparities with a possibly significant relationship to the race of the victim or defendant.(19)

The Supreme Court of New Jersey is the exception.(20) It has taken considerable initiative to implement proportionality review: the court appointed a Special Master, ordered the preparation of a data base to compile statistics for proportionality review, and allocated the time and resources necessary to develop the factual predicate, methodological tools and constitutional principles for proportionality review.(21) Nonetheless, to date no death sentence in New Jersey has been held to be disproportionate, even after subjection to this scrutiny.

Are state courts only going through the motions on proportionality review? The buck should have stopped at the state supreme court; in most states it did not. Is proportionality review now continued only to maintain the "appearance of justice"? This examination of how state high courts have actually implemented proportionality review will, hopefully, offer a perspective on these questions.

This Article analyses how state courts have addressed issues of racial and geographical disparities in capital case processing in the context of proportionality review. Part II of the Article sets out the doctrinal foundation for proportionality review established by the United States Supreme Court in 1976. After Gregg however, the United States Supreme Court shifted away from an analysis of state capital punishment systems, as systems. In a series of landmark ruling the United States Supreme Court indicated it would not overturn state capital punishment systems on the basis of aggregate challenges. Part II of this Article sets out the difference between an analysis of a capital case processing system and a challenge to an individual death sentence.

Part III examines how state high courts-and legislatures redefined and interpreted the principles of proportionality when sharp doctrinal changes in the capital jurisprudence of the United States Supreme Court became apparent. Immediately after Gregg all capital punishment jurisdictions faced the same situation. The United States Supreme Court in 1976 had strongly endorsed the procedures and principle of proportionality review set out in Georgia, but no state actually done it. Neither state high courts nor state legislatures wanted to risk the prospect of having their capital case processing system or newly reenacted statute declared unconstitutional by the United States Supreme Court. Most reenacting states included a provision for proportionality review in their capital statute. The state high court typically took charge of implementing proportionality review after the legislature enacted the skeletal language of proportionality from Gregg.

Each state developed its own capital punishment jurisprudence over the course of the next two decades, against the backdrop of changing attitudes towards crime and race in the country as whole. This jurisprudence frequently included the state high court's response to empirical evidence of racial and geographical disparities in capital case processing within the state. State high courts responded with a great deal of variety to the presentation of these data and to being presented with quantitative...

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