The debate on whether life sentences should be considered: Will Missouri's proportionality review remain meaningful?

• Author: Wilson-Schoone, Alexandra E.
• Position: LAW SUMMARY

1. INTRODUCTION

   To ensure that the imposition of death sentences is not the result of an aberrant jury, appellate courts may engage in death penalty "proportionality review" by comparing the facts of a case to prior factually similar cases. (1) If the court determines that a death sentence proves proportionate to sentences imposed in prior similar cases, the court affirms the imposition of the death penalty. (2) If the court determines that a death sentence is not proportionate, the court vacates the sentence. The Supreme Court of Missouri engages in statutorily-required proportionality review for every sentence of death. (3) However, the specifics of how to engage in proportionality review have been, and continue to be, a point of contention for the court.

   From 1981 to 1987, when determining whether the death sentence before it proved proportional to the sentences in other factually similar capital cases, the Supreme Court of Missouri considered affirmed, factually similar cases that resulted in either life imprisonment or a death sentence. (4) The court later decided to consider only affirmed, factually similar cases that resulted in a death sentence. (5) More recently, the court has returned to the practice of considering both factually similar cases that resulted in either life imprisonment or a death sentence. (6) Therefore, since 1977, the Supreme Court of Missouri varied its approach to which category of cases must be considered. (7)

   The court addressed these variations in its application of proportionality review in State v. Deck, leaving the question unanswered. (8) The court split three to three on whether similar capital cases that resulted in a life sentence must be considered under Missouri's proportionality review statute, with a seventh judge concurring only in the result. (9)

   This Law Summary will address the Supreme Court of Missouri's proportionality review jurisprudence, (10) the rationales of two opinions in Deck, (11) and the relationship of the Deck opinions to precedent and public policy. (12) Additionally, this Summary will address the court's subsequent application of and debate about proportionality review as well as the legislative response. (13) Finally, this Summary will conclude that for proportionality review to serve a meaningful function, the court must consider all affirmed, factually similar capital cases that resulted in either life imprisonment or a death sentence because only considering factually similar cases which resulted in the death penalty essentially guarantees a finding of proportionality. (14)

2. LEGAL BACKGROUND

   First, to provide a framework for Missouri's death penalty scheme, this section will discuss the seminal death penalty decisions of the Supreme Court of the United States. Second, this section will demonstrate how the Supreme Court of the United States' favorable opinion of proportionality review impacted Missouri's legislative enactments. Third and finally, this section will examine how the Supreme Court of Missouri has interpreted and applied the proportionality review legislation in capital cases.

   1. Seminal Decisions of the Supreme Court of the United States

      In 1972, the Supreme Court of the United States decided the seminal case of Furman v. Georgia, (15) in which the Court held that for a state death penalty scheme to be constitutional, the scheme must provide safeguards against arbitrary and capricious application of the death penalty. (16) The Court also suggested that all current state death penalty statutes were unconstitutional because they allowed for arbitrariness. (17) As a result, state legislatures nationwide began drafting new death penalty schemes. (18)

      Just four years later, in Gregg v. Georgia, (19) the Court analyzed a state death penalty scheme that attempted to satisfy the requirements of Furman, (20) The new death penalty scheme required that the state supreme court "review every death sentence to determine whether ... the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." (21) The Court, after discussing a Georgia Supreme Court decision that vacated a death sentence and imposed life imprisonment, found that cases factually similar to the case at issue had only imposed life imprisonment. (22) The Court stated:

      The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death. (23) Thus, the Court found that the statutorily required proportionality review served to meet the concerns of Furman. (24)

      In 1987, the Court decided another historically significant death penalty case in McCleskey v. Kemp, (25) The defendant in McCleksey argued that the imposition of the death penalty violated the Equal Protection Clause of the Fourteenth Amendment and also violated the Eighth Amendment. (26) Specifically, the defendant utilized the finding of the Baldus Study--that the death penalty is disproportionately imposed on black defendants who are found guilty of killing white victims (27)--to argue that "the State as a whole has acted with a discriminatory purpose in its death penalty cases." (28)

      The Baldus Study, which the Supreme Court of the United States accepted as valid, (29) examined over 2,000 Georgia capital cases and demonstrated that defendants charged with killing a white victim received the death penalty in eleven percent of the cases whereas those charged with killing a black victim only received the death penalty in one percent of the cases. (30) Moreover, the study illustrated that those charged with capital murder of a white victim were 4.3 times more likely to receive a death sentence than those charged with killing black victims. (31) Accordingly, the study concluded that black defendants who are found guilty of murdering "white victims have the greatest likelihood of receiving the death penalty" when compared to other defendant-victim racial pairings. (32) While accepting the study as true, the Court did not vacate the defendant's death sentence because the defendant's particular case lacked evidence of racial bias. (33)

   2. Missouri's Legislative Response to the Supreme Court of the United States Decisions

      In 1977, just five years after the high Court's decision in Furman, the Missouri legislature enacted a new death penalty scheme that required the Supreme Court of Missouri to review all death sentences. (34) Specifically, the statute required the court to determine:

      (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstances as enumerated in section 565.012; and (3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. (35)

      The statute further compelled the court to include references to the cases it considered when reaching its decision. (36) It also mandated that a court-appointed assistant collect "the records of all capital cases in which sentence was imposed after May 16, 1977, or such earlier date as the court may deem appropriate." (37) Moreover, the legislature required that the assistant "provide the court with whatever extracted information the court desires with respect" to the accumulated records of all capital cases that resulted in an imposition of a sentence. (38)

      Later, the Missouri legislature updated the proportionality review statute, which became effective in October 19 84. (39) The new statute required "the supreme court [to] determine ... [w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant." (40) Therefore, the only new charge to the court when conducting proportionality review was consideration of "the strength of the evidence." (41) The statutory language requiring the court assistant to collect the records of capital cases and to provide the court with the information it desires for the purposes of conducting proportionality review remained the same. (42)

   3. The History of the Supreme Court of Missouri's Application of Proportionality Review

      The Supreme Court of Missouri first discussed the proportionality review statute in 1980, in State v. Holmes. (43) Noting that the legislature's enactment of the proportionality review statute served to reduce the risk of arbitrary and capricious imposition of the death penalty, Judge Seiler, in a concurring opinion, asserted the necessity of including a complete recitation of the facts regarding the crime and the defendant in the court opinion, (44) even though a death sentence was not directly at issue in that case. (45) Specifically, Judge Seiler stated that:

      While in this particular case the prosecutor waived the death penalty ... in order to comply with [the proportionality review statute] and make the required comparison, we must know what the facts are in capital murder convictions for which the death penalty was not assessed, as well as in those for which it was. (46) Less than one year later, Judge Seiler echoed this sentiment again in his concurring opinion in State v. Hudgins, (47) There, he stated that to meet the duty required by the proportionality statute, the court's decision "must contain a statement of the facts, even though the penalty assessed was life without parole or probation for fifty...