Capital Punishment: Proportionality

2012-01-15 23:32:53

Proportionality in principle justifies, limits, or condemns Capital Punishment. That deeply held common value—that punishment must not be grossly disproportionate to the crime—dominates U.S. Supreme Court jurisprudence.

When the Court struck down the death penalty (five to four) in Furman v. Georgia (1972), Justices Brennan and Marshall held Capital Punishment per se cruel and unconstitutional. For these and likeminded absolutist opponents, death as punishment is an inhumane, morally disproportionate response to any crime, no matter how heinous. Other death penalty opponents may concede that sadistic mass murdering rapists do deserve to die. ‘‘Abstractly,’’ the punishment of death may fit that crime. But, they insist, history proves that government can never be trusted to kill proportionately.

In Furman, three Justices of the five who concurred found the death penalty only unconstitutional, because it was ‘‘freakishly imposed’’. As then administered, the death penalty was ‘‘like being struck by lightning’’ (Stewart), applied chaotically to a ‘‘capriciously selected, random handful’’—in no proportion and thus cruel and unusual punishment. Separately concurring in Furman, Justice Douglas also condemned the death penalty as unconstitutionally malproportioned, because ‘‘disproportionately imposed and carried out on the poor, the Negro, and members of unpopular groups.’’

After Furman, thirty-five states enacted new death penalty statutes. ‘‘The punishment must not be grossly out of proportion to the severity of the crime,’’ a plurality warned in Gregg in 1976, considering Georgia’s new statute. ‘‘We cannot say the punishment is invariably disproportionate to the crime,’’ the Court concluded, restoring the death penalty to the United States. ‘‘This is an extreme sanction, suitable to the most extreme of crimes.’’

Was rape, or treason, also a ‘‘most extreme’’ crime? Death was ‘‘indeed a disproportionate penalty for the crime of raping an adult woman,’’ Justice White declared for a plurality (Coker). Ordinarily, death was a disproportionate penalty for the crime of rape, Justice Powell separately agreed in this case where the rape victim was not otherwise injured. But it ‘‘may be that the death penalty is not disproportionate punishment for the crime of aggravated rape.’’ Dissenting Justices in Coker also agreed in principle: ‘‘I accept that the Eighth Amendment’s concept of disproportionality bars the death penalty for minor crimes,’’ Justice Burger, joined by Rehnquist conceded. ‘‘But rape is not a minor crime,’’ and death was not necessarily disproportionate for a ‘‘chronic rapist’’ who had been previously convicted of murder and escaped from prison to rape again.

Although the death penalty for child rape and similarly heinous crimes remains an open question, the mantra of modern capital jurisprudence—‘‘death is different’’—suggests that Constitutional proportionality inherent in the Eighth Amendment may limit death as punishment only to murder. (See Proportionality in Punishment.)

Five years after Coker, the Court in Enmund, five to four, held that death was a disproportionate penalty for a getaway car driver who neither intended nor expected his cofelon to shoot and kill their robbery victim. Dissenting in this particular case, Justice O’Connor stated common ground for the Court: ‘‘The penalty imposed in a capital case [must] be proportional to the harm caused and the defendant’s blameworthiness.’’ How serious the crime, how morally culpable the killer? This depends not only on the harm to the victim, but also on the killer’s mental state and motive. In Tison, Justice O’Connor, this time in the majority, held that a reckless and depraved indifference to human life without an intent to kill could make death a proportional penalty for a Felony Murder accomplice.

Harm and blameworthiness—essential components of proportionality—require a particularized consideration of each crime and each criminal. Thus, as constitutional punishment, death must not be grossly disproportionate to the crime, and it must not be disproportionate to the criminal’s particular culpability, however measured. Capital Punishment may neither be applied randomly, nor automatically, for any crime. Thus, the very same day the Court affirmed statutes from Georgia, Florida, and Texas, in Woodson and Roberts, it struck down North Carolina’s and Louisiana’s mandatory death penalties.

Since then, in a series of cases, explicitly or implicitly, a substantial majority has insisted that proportionality requires the capital sentencer to consider all relevant mitigating circumstances, not only of the crime, but also the background and character of the criminal (Lockett and Eddings).

Although proportionality constraints prohibit a state from mandating death for all individuals who commit even the most aggravated murder legislatively defined in advance, the Court itself has used proportionality, categorically to exempt from a death penalty entire classes of offenses (Coker) and also offenders. Thus, in 2002, a majority held death per se disproportionate punishment for any crime committed by a mentally retarded defendant (Atkins). And in 2005, a majority found the death penalty per se ‘‘disproportionate punishment for offenders under 18.’’ (Roper)

Roper intensified controversy over how to measure proportionality. Constitutionally disproportionate punishment outlawed by the Eighth Amendment is not static, but must be informed by ‘‘the evolving standards of decency of a maturing society.’’ (Trop, 1958) All Justices presently agree that ‘‘time works changes,’’ that what’s ‘excessive’ ‘‘may acquire meaning as public opinion becomes enlightened by a humane justice’’ (Weems, 1910). In determining proportionality vel non, the Roper majority, along with Justice O’Connor in dissent, would consider the views of the international community, while insisting that in the end the Court determines ‘‘moral proportionality’’ by exercising ‘‘our own independent judgment.’’ Justices Scalia and Rehnquist in dissent insisted that Constitutionally mandated ‘‘moral proportionality’’ is an antidemocratic cover, by which individual Justices impose and substitute their subjective personal views for those of legislatures.

While the Court has focused constitutional attention on whether and when death is a too severe response, retributivists insisting on ‘‘just deserts’’ force the opposite proportionality question into the debate: Is life in prison (with or without parole) a sufficiently unpleasant experience? (See Retribution) A public convinced that prison life is so unbearable that ‘‘life is worse than death’’ may abolish the death penalty, comfortable it has maintained proportionality. An informed public, however, aware that sadists who rape and torture children to death end up watching television and playing volleyball, may insist, that as administered, life without parole destroys the ‘‘moral proportionality,’’ which only a death penalty can maintain.

ROBERT BLECKER

Cases and Statutes Cited

Atkins v. Virginia 536 U.S. 304 (2002)
Coker v. Georgia 433 U.S. 584 (1977)
Eddings v. Oklahoma 455 U.S. 104 (1982)
Enmund v. Florida 458 U.S. 782 (1982)
Furman v. Georgia 408 U.S. 238 (1972)
Gregg v. Georgia 428 U.S. 153 (1976)
Lockett v. Ohio 438 U.S. 586 (1978)
Roberts v. Louisiana 428 U.S. 325 (1976)
Roper v. Simmons 125 S.Ct. 1183 (2005)
Tison v. Arizona 481 U.S.137 (1987)