The court of life and death: the two tracks of constitutional sentencing law and the case for uniformity.

• Author: Barkow, Rachel E.

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court's reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist on any of these requirements in noncapital cases.

This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court's poor legal reasoning that makes its sentencing jurisprudence misguided. It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If as a matter of constitutional law, death were no longer different, our criminal justice system would be--and almost certainly for the better.

TABLE OF CONTENTS INTRODUCTION I. How DEATH MAKES A DIFFERENCE A. The Sentencer's Discretion 1. Guided Discretion 2. Individualization B. Proportionality Review II. THE TWO-TRACK SYSTEM AND THE CONSTITUTION A. The Traditional Means of Constitutional Interpretation. B. The Functional Case for Treating Death Differently C. Specific Substantive Contexts 1. The Sentencer's Discretion 2. Proportionality Review D. Administrative Concerns III. THE PITFALLS OF THE TWO-TRACK SYSTEM A. How the Two-Track System Harms Capital Defendants. B. How the Two-Track System Harms Noncapital Defendants C. The Two Tracks Mirror the Irrationality of Sentencing Politics IV. TOWARD A UNIFIED JURISPRUDENCE OF PUNISHMENT CONCLUSION INTRODUCTION

Death is different, according to the Supreme Court. (1) And the Court is hardly guilty of understatement. Its capital sentencing jurisprudence departs from its noncapital sentencing case law in the most fundamental ways. In capital cases, the Court insists that statutes guide the sentencing authority's discretion so that a death sentence cannot be imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, exempting certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. In noncapital cases, in contrast, the Court has done virtually nothing to ensure that the sentence is appropriate. Mandatory punishments proliferate with no attention to an individual's particular culpability, sentences are frequently disproportionate given the actual conduct and culpability of the offender, and arbitrariness abounds.

Although the Court has relied on the "death is different" mantra time and again in its case law to justify its stark two-track system for sentencing, the Eighth Amendment does not support the Court's elaborate set of rules for death and its virtually nonexistent role in overseeing any other criminal sentence. The functional explanations used by the Court to support its capital rulings also fail to support the Court's bifurcated approach, for these arguments apply equally to noncapital cases.

It is not just the Court's unpersuasive legal reasoning that calls into question the two tracks of sentencing; the Court's two-track approach has also been a policy failure for capital and noncapital cases alike. The Court's additional substantive protections for capital cases satisfy neither the critics nor the supporters of the death penalty. Critics of the death penalty are unhappy with the Court's approach because it helps preserve capital punishment. People who are not unalterably opposed to the death penalty but who are concerned that it be administered fairly gain false comfort from the fact that the Court has created heightened protections for capital cases. (2) But, as scholars of the Court's death penalty jurisprudence have pointed out, the protections established by the Court fall short of addressing all the concerns raised by capital punishment. (3) There are extra rules, but they do not go to the core problems with the death penalty's administration. Meanwhile, supporters of the death penalty decry these same safeguards because they create the perverse situation that the worst criminal offenders receive more substantive protection than any other defendant and because the Court saddles death cases with greater prosecutorial burdens. Pro-death penalty advocates are therefore able to use the Court's jurisprudence as a rallying cry for tough-on-crime and pro-death penalty legislation. (4) And as bad as the Court's two-track jurisprudence may be for death cases, it is far worse for noncapital matters, which by comparison languish in a backwater devoid of any procedural protections.

Perhaps the most disconcerting part of the Court's bipolar approach to substantive sentencing law is that its very nature makes it resistant to change. By not having to consider criminal sentencing questions under the same constitutional rules, the Court can scrutinize death cases more closely without taking on the burden of policing all criminal cases. The Court has an interest in doing this because it allows the Court to feel better about its role in capital punishment's administration without paying much of a price. The Court likely feels some responsibility for the resulting death in an execution because of its significant role in overseeing all capital cases' compliance with the Constitution. (5) The Court typically receives a petition for a stay on the eve of an execution, so it knows that it is usually the last stand between the defendant and the end of his or her life. That is a heavy load to bear, but by allowing itself to give special scrutiny to capital cases, the Court can alleviate some of its worries about how a capital sentence has been administered. At the same time, by cabining capital cases to a separate category, the Court never has to confront the question of whether it is prepared to give greater oversight to all criminal cases in exchange for the benefits it wants to achieve in capital cases. In 2004, more than one million adults received noncapital sentences versus 115 people who received death sentences. (6) The Court has focused on the tiny percent of cases it views as the most sympathetic and created a special jurisprudence for them. With those cases off the table as a cause for concern, the Court can--and has--ignored the rest.

The entrenchment goes deeper still. By creating a two-track system, the Court has taken what should be natural allies for broader criminal justice improvements--capital and noncapital defendants and their representatives-and placed them at odds with one other. Capital punishment reformers now explicitly argue that the protections they are requesting should apply only to capital cases so that they can emphasize the low burden their requests would impose on the system. (7) These reformers therefore explicitly cast aside noncapital cases as areas in need of reform. In addition, death penalty abolitionists frequently tout life without parole as a viable sentencing option, even though noncapital sentencing reformers have highlighted that life without parole itself raises fundamental questions of justice. (8)

The Court's two-track approach to sentencing is troubling not only because it maintains the status quo at the Court, but also because reform through the political process is so difficult for noncapital cases. (9) It is almost impossible for the millions of people serving noncapital sentences to get the public's attention about injustices in noncapital sentencing law, even though there are many. (10) While the politics surrounding capital punishment is hardly a model of rationality, capital punishment has generally been subject to more political scrutiny and consideration than noncapital punishment. The Court's approach therefore exacerbates the imbalance that already exists in the political process.

This is not to suggest that Court oversight is not needed in capital cases, because it plainly is. The political process surrounding the death penalty is itself still deficient, and the Constitution demands judicial review of criminal sentencing. (11) The point here is that this same judicial oversight is needed in noncapital cases--perhaps more so.

This Article argues that it is time for the Court to abandon the two-track approach to criminal sentencing under the Eighth Amendment. It is wrong as a matter of doctrine, and it is unwise as a matter of policy. It has unreasonably discriminated among criminal defendants, and most sentencing laws are virtually impervious to improvement so long as the Court clings to the claim that it need not apply the same constitutional protections to capital and noncapital defendants.

The argument unfolds as follows: After outlining how the Court's two sentencing tracks differ in Part I, Part II argues that neither the Constitution, the Court's functional arguments, nor the demands of specific contexts justify the Court's bifurcated approach to the Eighth Amendment. Part III expands on this discussion by explaining how the two-track system harms both capital and noncapital defendants. Finally, Part IV argues that there are good reasons to believe that a switch to uniformity would...