Article by Catherine Hancock
The Supreme Court's five death penalty cases of 1976, like the regenerating Hydra of Greek mythology, have engendered more than one unsettled question for every issue they purportedly laid to rest. In these cases the Court was confronted with the legislative responses to its skeletal mandate in Furman v. Georgia that sentencing in capital cases cannot be committed to the unguided discretion of a trial judge or jury. Two legislative antidotes to unguided discretion had been formulated in the four years following Furman. The first solution simply removed all discretion through the use of mandatory death penalty statutes. The second, more complicated "guided discretion" approach emulated the Model Penal Code (M.P.C.) proposal, under which the judge or jury hears all evidence relevant to sentencing in a post-trial hearing and can then impose death only if one of eight aggravating circumstances exists and none of eight mitigating circumstances are "sufficiently substantial to call for leniency." A plurality of three Justices spoke for the Court in striking down the mandatory schemes in Woodson v. North Carolina and Roberts v. Louisiana on three grounds: The schemes were anachronistic departures from contemporary standards of acceptable punishments; they allowed the unguided, standardless exercise of jury discretion in selecting the death penalty; and they foreclosed individualized consideration of the character and record of a defendant and of the circumstances of his offense. The same plurality, however, found the "guided discretion" schemes of Georgia, Florida, and Texas to possess sufficient guidance and individualization to avoid the constitutional failing of arbitrariness. Moreover, the Court held that the death penalty in the abstract was constitutionally acceptable because it comported with "evolving standards of decency" as measured by a complex constitutional construct, the contours of which continue to be hotly disputed.
When the Court upheld the three "guided discretion" schemes in the 1976 cases, it in fact upheld, without differentiation, two different modes of tailoring the death penalty to fit particular offenders. Georgia and Florida used the M.P.C. model of weighing aggravating and mitigating criteria in a sentencing hearing upon conviction for the crime of murder, but the statute upheld in Jurek v. Texas incorporated the aggravating circumstances into the substantive definitions of murder. The Texas legislature, in enacting the statute upheld in Jurek, took three aggravating circumstances from the M.P.C., added two of its own, and enacted these five types of murder as substantive offenses that would trigger a capital sentencing hearing. This article addresses the problems that arise when the latter method is adopted, namely, when a capital sentencing scheme is transplanted into the substantive criminal law defining the death penalty crime of murder.
At first glance the Texas model of calibrating the death penalty appears to differ from the M.P.C. scheme only in that the former gives the jury a much larger degree of unguided discretion than the latter. To impose death at the sentencing hearing the Texas jury is required to decide unanimously that there is a probability, beyond a reasonable doubt, that the defendant would commit future acts of violence, thereby constituting a continuing threat to society. The first critiques of the 1976 cases focused on the laxity of the Texas system and proclaimed Jurek as the case setting the "constitutional outpost" of permissible arbitrariness in capital sentencing. Upon a close examination, however, the calibration approach also appears to create acute conflicts with the traditional law of homicide. These conflicts arise from potential overlaps and inconsistencies between the transplanted capital murder definitions and the older framework of homicide crimes. Furthermore, some sentencing criteria may not be suitable to serve as substantive definitions of murder because they may be unconstitutionally vague or overbroad. Finally, the selection of aggravating circumstances is not regulated by a well-developed body of constitutional guidelines.
The first part of this article presents a background sketch of the Supreme Court's death penalty jurisprudence of the 1970's, focusing particularly on two recent cases as possible sources of constitutional guidelines for death penalty statutes. Since the calibration model was upheld in Jurek, there are now two more strands of constitutional theory to be considered in reevaluating the calibration approach: In Coker v. Georgia a new doctrine of proportionality was established and in Lockett v. Ohio some new guidelines were established defining the content and scope of mitigating circumstances. The Supreme Court has not yet considered the impact of these recent decisions on the calibration approach. The second part of the article will undertake a close study of the experience of one state, Louisiana, with its 1977 experiment with a calibration approach to capital sentencing. That experiment wreaked havoc upon the law of homicide in ways that were both inevitable and accidental. In the final part of the article the usefulness of the calibration approach will be analyzed in light of both the problems it provoked in Louisiana and its potential constitutional shortcomings.
About the Author
Catherine Hancock. Geoffrey C. Bible & Murray H. Bring Professor of Constitutional Law, Tulane University. A.B. 1972, Stanford University; J.D. 1975, University of Chicago.
Citation
53 Tul. L. Rev. 828 (1979)