The limits of legal language; decisionmaking in capital cases.

• Author: Steiker, Jordan M.

INTRODUCTION

Few areas of constitutional adjudication have generated as much doctrinal complexity in so little time as contemporary death penalty law. Thirty years ago, federal constitutional rulings placed virtually no restraints on state death penalty practices apart from generic rulings that applied to all state criminal proceedings.(1) At that time, the Supreme Court had less to tell states about capital punishment than it routinely told them about much more mundane matters of state civil and criminal law. The Court had, for example, spoken much more clearly and directly to state efforts to terminate driver's licenses than to state efforts to impose the ultimate punishment.(2) Nor did Court intervention seem particularly likely. As late as 1962, Alexander Bickel lamented that the Court had "missed or ha[d] willfully passed up its most signal opportunities" to address the constitutionality of capital punishment and that "barring spectacular extraneous events, the moment of judgment" regarding the death penalty was "a generation or more away."(3)

Bickel's prediction, of course, was way off the mark. Within ten years of his assessment, opponents of capital punishment, buoyed by the "revolution" in criminal procedure advanced by the Warren Court, had successfully drawn the Court into the constitutional fray. The NAACP Legal Defense Fund led the effort to halt executions through a "moratorium" strategy by raising a myriad of procedural and substantive challenges to state death penalty schemes in cases in which "real" execution dates loomed.(4) After their much heralded success in limiting the practice of death-qualifying jurors in capital cases,(5) the abolitionist and reformist forces appeared to lose decisively when the Court upheld, against due process challenge, "standardless discretion" in capital sentencing in McGautha v. California.(6) Indeed, immediately after McGautha was announced, Justice Brennan had become convinced "that it was not just a lost skirmish, but rather the end of any hope that the Court would hold capital punishment to be unconstitutional."(7) He accordingly recommended that the Court decline review in all of the numerous death cases that had worked their way through the lower courts and been held pending the Court's resolution of McGautha and other potentially far-reaching capital cases.(8)

Political machinations on the Court, however, led to the grant of certiorari in "clean cases" challenging the constitutionality of capital punishment under the Eighth Amendment.(9) Both the arguments of the litigants and the ensuing opinions of the fractured Court reveal that Furman v. Georgia(10) was not a piecemeal evaluation of particular aspects of state death penalty practices but rather an encompassing assessment of the moral, political, and practical dimensions of the American system of capital punishment.

The five Justices who voted to strike down all of the capital statutes before the Court(11) -- and by implication, nearly all of the capital statutes then in force(12) -- wrote separate opinions identifying various and, to some extent, conflicting rationales for the Court's judgment. Notwithstanding their separate writings, the "majority" Justices did share several fundamental criticisms of the status quo that revolved around an acknowledged fact: despite the broad death eligibility established in most state schemes, relatively few persons were sentenced to death and fewer still were executed in the decade before Furman.(13) The rarity of death sentences and executions suggested that at least some of those responsible for administering capital punishment -- prosecutors, judges, juries, and executive officials -- lacked the will to impose a widely available punishment. This gap led Justice Brennan to conclude that the death penalty no longer enjoyed genuine support in the community and that its continued availability as a penalty was contrary to "evolving standards of decency."(14) The paucity of executions in relation to broad death eligibility was troubling to other members of the Court because there was simply no reliable evidence indicating that those executed or sentenced to death were in any sense the most deserving of death among the death eligible.(15) Worse still, some members of the Court, particularly Justice Douglas, feared that the few individuals caught in the death penalty web were selected for discriminatory, morally irrelevant reasons, such as race or class.(16)

These shared concerns about the alarming chasm between the death penalty in theory and the death penalty in fact naturally led the Court to condemn the absence of legislative guidance in state schemes. Notwithstanding Justice Harlan's eloquent rejection of the petitioner's claim in McGautha that the death penalty decision could be, and constitutionally must be, rationalized through detailed sentencing instructions,(17) the Furman Court seemed to suggest that just such guidance was necessary to save the death penalty -- if it could be saved(18) -- in light of the apparent arbitrary and discriminatory aspects of prevailing death penalty practices.

Legislative guidance presumably would ensure that individual sentencing decisions reflected the values of the larger community because the state would announce in advance its "theory" of when death should be imposed.(19) Such legislative guidance promised to address two distinct problems. First, clear standards would limit the risk that "undeserving" defendants would be sentenced to death because their particular juries concluded, contrary to the values of the community as a whole, that the defendant before them was among the truly worst offenders. This problem of "overinclusion" was exacerbated in the preFurman era by the availability of the death penalty for crimes such as rape and robbery, which, though undoubtedly very serious crimes, increasingly were regarded as meriting a lesser punishment than death by the wider community.(20)

Second, clear standards would ensure that all potentially "deserving" defendants would be subject to the same sentencing criteria rather than the ad-hoc criteria adopted on a case-by-case basis by juries afforded absolute and unguided discretion. Legislative guidance thus held out the possibility that like cases would be treated alike. Not only would all undeserving defendants escape the death penalty; the hope was that clear legislative direction would ensure that all deserving defendants received it as well.

States responded to Furman's critique of standardless discretion in roughly two ways. Some states appeared to read Furman as requiring the removal of sentencing discretion altogether and accordingly enacted mandatory statutes that required and not merely permitted the death penalty for certain offenses.(21) Most states, however, revamped their statutes to increase substantially the structure of the sentencing decision while at the same time preserving some sentencer discretion to choose between life and death.(22) In these states, the previously broad injunctions to jurors to decide punishment in accordance with their "'most profound judgment'"(23) or their "dictates of conscience"(24) were replaced with formulas involving consideration of "aggravating" and "mitigating" factors or "special issues." These latter statutes have emerged as the sole constitutionally permissible vehicles for deciding punishment in capital cases. Having invalidated the poles of standardless discretion and discretionless standards, the Court has directed most of its regulatory efforts in the death penalty area to fine-tuning the permissible middle ground of "guided discretion."

The resulting death penalty law has proven to be disastrous. As I have argued elsewhere, by focusing so single-mindedly on state efforts to refine sentencer discretion at the moment of decision, the Court has rejected or ignored several more promising means of addressing arbitrary and discriminatory death penalty practices.(25) It should be clear today if it was not in 1972 that quality representation, meaningful proportionality review of death verdicts, and adequate opportunities for federal review of federal claims are essential to protect against undeserved and unequal applications of the death penalty.

The problem with the current statutory embodiments of "guided discretion," however, is not simply that they do not go far enough toward curing the ills identified in Furman. More fundamentally, contemporary death penalty instructions actually undermine the goals they purport to advance. "Guidance" in the post-Furman statutes often comes in the form of mind-numbing details about the state's and the defendant's respective burdens of proof in establishing or disproving the existence of aggravating and mitigating factors.(26) Such instructions, along with highly technical directions about how to reach the ultimate verdict,(27) are neither easily understood nor particularly helpful in rationalizing the death penalty decision. As recent empirical work has demonstrated,(28) the complexity of current instructions is likely to steer sentencers away from the core issues they are expected to decide.

Perhaps more importantly, the net effect of casting the death penalty decision in complicated, math-laden vocabulary is to obscure for many jurors the fact that they do retain the ultimate moral decisionmaking power over who lives and dies. Guided discretion, as it appears in contemporary statutes, can easily and wrongly be experienced as no discretion at all because such statutes invariably fail to instruct jurors in affirmative terms about the scope of their moral authority and obligation. Thus, despite the Court's insistence that capital sentencers must be permitted to return a life sentence based on particular mitigating aspects of the defendant's character, background, or crime,(29) state schemes often push jurors toward the death penalty in cases in which individual jurors may not...