Mandatory death sentences have been utilized throughout history. At common law, death was imposed for all convicted murderers. Recognizing that the culpability of convicted murderers varied, in 1794 Pennsylvania became the first state to abolish capital punishment for most murders. The state mandated death for only those killings that were ‘‘willful, deliberate and premeditated.’’ Every other state followed Pennsylvania’s lead. Jurors balked, however, at being forced to impose death in cases that were inappropriate for capital punishment. As a result, they engaged in jury nullification by simply refusing to convict the defendant.
In order to address the problem of jury nullification, legislatures granted almost total discretion to the jury in sentencing the defendant. Jurors in California were told, for instance, that the law ‘‘commits the whole matter of determining which of the two penalties [death or life imprisonment] shall be fixed to the judgment, conscience, and absolute discretion of the jury.’’ Capital defendants argued to the Supreme Court that the lack of standards to control jury sentencing discretion was a violation of due process, an argument that the Court rejected.
Just one year after deciding that jury discretion in sentencing was not a violation of due process, the Supreme Court concluded that statutes vesting unguided sentencing discretion in juries and trial judges had become unconstitutional. The Court concluded that as a result of these statutes, the death penalty was being imposed in a discriminatory, wanton, and freakish manner. This decision had the effect of imposing a moratorium on capital punishment in the United States since each state empowered the jury with unfettered discretion in determining whether a defendant should be sentenced to death. As a result of this decision, thirty-five states reformulated their sentencing provisions in an attempt to overcome the objections the Court had articulated. A few states responded by returning to mandatory death sentences.
For instance, North Carolina mandated death for any willful, deliberate, and premeditated killing, or any killing that occurred during the commission of rape, robbery, arson, kidnapping, burglary, or other felony. North Carolina also enacted a mandatory death sentence statute for first-degree rape. The Supreme Court held that mandatory death sentences were a marked departure from contemporary standards of decency and as a result they constituted cruel and unusual punishment in violation of the Eighth Amendment. The Court rejected the argument that mandatory death sentences eliminated the risk of arbitrary and discriminatory application; it reasoned that jury nullification was certain to occur in the event that death was mandatory, referring to the historical experience. The Court indicated that there was no way that the judiciary could check the arbitrary and discriminatory use of jury nullification. Finally, the Court refused to permit mandatory death sentences because they do not allow for the consideration of mitigating circumstances.
Louisiana responded to Furman v. Georgia, 408 U.S. 238 (1972), by enacting a statute more narrowly defined than the North Carolina statute. The Supreme Court, however, found that Louisiana’s narrower definition of capital murder was not ‘‘of controlling constitutional significance’’ and held it to be unconstitutional for the same reasons it rejected the North Carolina statute.
The Supreme Court has refused to permit mandatory death sentences in any context. For instance, in Sumner v. Sherman, while serving a life sentence without possibility of parole for first-degree murder, the defendant was convicted of the capital murder of a fellow inmate. Under Nevada law then in effect, he was automatically sentenced to death. The Court held that the mandatory sentence was unconstitutional, in part, because it did not allow the defendant to present mitigating evidence and the sentencer to consider such evidence.
The Supreme Court’s decisions invalidating mandatory death sentences established two important principles. First, as a result of the fundamental respect for humanity underlying the Eighth Amendment, capital defendants are allowed to present evidence of mitigating circumstances and the sentencer is required to listen to that evidence. Thus, a death sentence is invalid if the sentencer was precluded from considering mitigating evidence or refused to consider such evidence. Second, these decisions were based upon the principle that ‘‘death is different.’’ Because death is different, the need for reliability in the determination that death is the appropriate punishment is even greater. As a result, the Court has adopted heightened procedural requirements in capital cases.
The greatest challenge for the court has been and will continue to be the elimination of arbitrariness and discrimination in the death penalty process. Its decisions prohibiting mandatory death sentences have been a part of that endeavor. The Court, however, has not succeeded. Before retiring from the Court, Justice Blackmun concluded that ‘‘the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake.’’
KENNETH A. WILLIAMS
Cases and Statutes Cited
See also Capital Punishment; Capital Punishment and the Equal Protection Clause Cases; Capital Punishment: Due Process Limits; Capital Punishment: Eighth Amendment Limits; Capital Punishment: History and Politics; Capital Punishment Reversed