Comparative Proportionality Review: Will the Ends, Will the Means

• Publication year: 1995
• Citation: Vol. 18 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 18, No. 3SPRING 1995

Comparative Proportionality Review: Will the Ends, Will the Means

Bruce Gilbert(fn*)

I. Introduction

The Washington Supreme Court finds it acceptable when one defendant is sentenced to death, while five equally culpable defendants are not.(fn1) On its face, this is grossly unfair to the defendant singled out to die while his brethren live out their lives in prison. While paying lip service to the elimination of arbitrary death sentences, the Washington Supreme Court continues to do nothing to solve this problem. Perhaps most unfortunate for those defendants disproportionately sentenced is that the means for a more rational application of the death sentence is already present in Washington's death penalty statute. This means is "comparative proportionality review."(fn2) Used correctly by the judiciary, this tool has the potential to make real progress toward nonarbitrary, nondiscriminatory, and fair death sentences.

Comparative proportionality review determines whether a given death sentence is "excessive or disproportionate" compared to the penalty imposed in "similar cases."(fn3) The Washington Supreme Court conducts comparative proportionality review in all cases in which the death sentence is imposed.(fn4) Ideally, if the Court finds that a jury has arbitrarily sentenced a defendant to death compared to other defendants, the review should provide the procedural means to alter a death sentence to a sentence of life in prison. Comparative proportionality review legislation finds its origin in the United States Supreme Court case Furman v. Georgia.(fn5)

In 1972, Furman v. Georgia invalidated several states' death penalty statutes as violating the Eighth Amendment's prohibition against cruel and unusual punishment.(fn6) Some of the common themes among the concurring justices were that death sentences were being imposed in an arbitrary, discriminatory, and random fashion.(fn7) Because many states had similar statutory schemes, Furman can be said to have briefly eliminated the death penalty in the United States.(fn8) Even today, the concerns of the Furman court continue to haunt the application of the death penalty.(fn9) Comparative proportionality review was one common procedural method by which many states attempted to bring their death penalty statutes into compliance with Furman.(fn10)

In State v. Benn,(fn11) a case involving a grisly double murder, the Washington Supreme Court demonstrated the difficulty of applying comparative proportionality review in practice. In Benn, six justices, in a majority and concurring opinion, agreed that a sentence of death was "proportionate," while three justices vigorously disagreed. The various procedures used by the justices to reach their conclusions were dissimilar, making this case an excellent vehicle for examining comparative proportionality review. Benn demonstrates some of the many flaws inherent in the Washington Supreme Court's use of comparative proportionality review including (1) the use of inconsistent logic to rationalize whether a particular case is "similar," (2) the lack of any methodology for the comparison of "similar" cases, and (3) the fact that no clear consensus exists about what comparative proportionality review is attempting to accomplish. These flaws are fatal to the application of comparative proportionality review; as a result, the review is merely a means by which the judges may arbitrarily decide whether or not a death sentence is aproppriate.

Although Washington's present statutory death penalty scheme would almost certainly pass constitutional scrutiny on its face,(fn12) this Comment will argue that Washington's application of comparative proportionality review does little to protect defendants from discriminatory, arbitrary, or unfair death sentences. However, if comparative proportionality review was used properly by the Washington Supreme Court, it could be a powerful tool to address some of these concerns.

This Comment attempts to achieve several objectives. Part II discusses the reasons that the death penalty was found to be unconstitutional in Furman v. Georgia. Part III reviews several post-Furman Supreme Court cases and the revised death penalty statutes that were deemed to satisfy the procedural inadequacies found in pre-Furman death sentence statutes. This Part also discusses the role proportionality review plays in making a death penalty statute constitutional. Part IV examines the development of comparative proportionality review in the State of Washington. State v. Benn will serve as the focus of this discussion. Part V demonstrates that Washington's application of comparative proportionality review is seriously flawed in several respects. These flaws include both the procedural means that the court has used to choose similar cases, and substantive concerns that the court has never clearly defined the purpose of comparative proportionality review. Finally, Part VI of this Comment will advocate a more suitable method for applying comparative proportionality review, paying special attention to the reasoning of the Furman court and the flaws that caused the 1972 U.S. Supreme Court to find several states' death penalty statutes unconstitutional.

II. Background-Furman v. Georgia

Under the Eighth Amendment to the Constitution, punishment may not be cruel and unusual.(fn13) In the watershed case Furman v. Georgia,(fn14) the U.S. Supreme Court was asked to determine whether the death penalty, as applied in two states, violated this amendment.(fn15) The Court produced a brief per curium in which the nine justices wrote separate opinions. Five concurring justices concluded that the death penalty was unconstitutional.(fn16) Comparative proportionality review was a direct response to Furman,(fn17) and thus, it is important to understand the rationale these justices used in reaching their conclusion. Through such an understanding, comparative proportionality review can best be utilized to remedy the constitutional flaws found by the Furman court. Each concurring opinion in Furman will be examined in turn.

Marshall and Brennan argued that the death penalty was unconstitutional in all cases.(fn18) Brennan believed that a penalty was violative of the Eighth Amendment's restriction against cruel and unusual punishment when it did not "comport with human dignity."(fn19) He also characterized the application of the death penalty as "freakishly" or "spectacularly" rare.(fn20) Finally, Brennan argued that the worst crimes were not those punished by death. He stated that "[n]o one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison."(fn21)

Similarly, Marshall viewed the death penalty as being constitutional at one time, but becoming cruel and unusual due to the evolving nature of our society.(fn22) He was also concerned with the discriminatory application of the death penalty and stated: "Regarding discrimination, it has been said that '[i]t is usually the poor, the illiterate, the underprivileged, the member of the minority group-the man who, because he is without means, and is defended by a court-appointed attorney-who becomes society's sacrificial lamb . . . .'"(fn23)

The concurring opinions of Justices Stewart, White, and Douglas(fn24) are probably the most important in Furman because they did not advocate the elimination of the death penalty per se.(fn25) These justices were concerned with the lack of procedural safeguards and the blatant unfairness that was so readily apparent in the application of death penalty statutes of this time. However, they left the door open for an improved procedural process in future death penalty statutes.(fn26)

Justice Stewart viewed the death penalty as being substantially different from other forms of punishment.(fn27) He found the imposition of the death penalty to be "cruel and unusual in the same way that being struck by lightning is cruel and unusual," and concluded that a penalty "so wantonly and so freakishly imposed" does not comply with the Eighth and Fourteenth Amendments.(fn28)

Justice White addressed only the narrow question of whether the challenged death penalty statutes were constitutional.(fn29) He answered this question in the negative for three reasons. First, he argued that a penalty imposed so infrequently no longer serves the traditional purposes of criminal justice.(fn30) Second, he was concerned with the arbitrary nature of the sentence and stated that "there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not."(fn31) Finally, Justice White was troubled by the legislature delegating its authority, and essentially allowing judges and juries unguided discretion. He pointed out that no matter what the circumstances, a judge or jury could find the sentence of death appropriate or inappropriate "without violating [the legislature's] trust or any statutory policy."(fn32)

Justice Douglas' arguments paralleled those of Justice White, as he pointed to evidence of discriminatory application of the death penalty,(fn33) and uncontrolled judge and jury discretion.(fn34) He argued that a law that stated on its face that only poor, uneducated blacks could be executed would plainly fail the "cruel and unusual" punishment...