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VANN BLUME (DO NOT DELETE) 9/23/2016 10:00 AM Included with letter from SCCID to Oversight Subcommittee (September 7, 2018) ATTACHMENT 2 FORTY YEARS OF DEATH: THE PAST, PRESENT, AND FUTURE OF THE DEATH PENALTY IN SOUTH CAROLINA (STILL ARBITRARY AFTER ALL THESE YEARS) JOHN H. BLUME* & LINDSEY S. VANN** INTRODUCTION We now have forty years of experience under the “death belt” in South Carolina. The Supreme Court of the United States approved new death sentencing schemes in 19761 and the death penalty has been in business more or less full time in the Palmetto State since then.2 Last year, two Justices of the Supreme Court called for full briefing on the constitutionality of the death penalty in light of forty years of data that demonstrate the death penalty statutes enacted in the 1970s have not lived up to constitutional demands.3 In this Article, we will report and comment on the results of four decades of—in Justice Blackmun’s words—“tinker[ing] with the machinery of death”4 in South Carolina. Copyright © 2016 John H. Blume & Lindsey S. Vann. * Samuel F. Leibowitz Professor of Trial Techniques, Cornell Law School, and Director, Cornell Death Penalty Project. The authors would like to thank Amelia Hritz for her invaluable research and data analysis assistance and Hannah Freedman, David Katz and Laura King for their research assistance. ** Staff Attorney at Justice 360 (formerly the Death Penalty Resource & Defense Center) in Columbia, South Carolina and former Cornell Death Penalty Project Fellow. 1. Gregg v. Georgia, 428 U.S. 153 (1976). 2. As will be described in more detail in the next section of this Article, in 1974, South Carolina enacted a mandatory death penalty statute that was deemed unconstitutional in 1976, but a new statute was almost immediately enacted by the legislature and signed by the Governor. See infra notes 13, 23–24 and accompanying text. 3. Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting) (joined by Justice Ginsburg). 4. Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from the denial of certiorari). In 2002, after twenty-five years with the current death penalty statute, one of the authors published a similar report of the status of South Carolina’s death penalty. John H. Blume, Twenty-Five Years of Death: A Report of the Cornell Death Penalty Project on the “Modern” Era of Capital Punishment in South Carolina, 54 S.C. L. REV. 285 (2002). VANN BLUME (DO NOT DELETE) 9/23/2016 10:00 AM Included with letter from SCCID to Oversight Subcommittee (September 7, 2018) 184 DUKE JOURNAL OF CONSTITUTIONAL LAW & PUBLIC POLICY [VOL. 11:1&2 It is not a pretty picture, and our bottom line is that the arbitrariness that led the Supreme Court to invalidate the death penalty in 1972 is still very much alive today. We will begin with a brief history of South Carolina’s “modern” death penalty system. I. THE BEGINNING OF THE MODERN ERA In Furman v. Georgia, a bare 5-4 majority of the Supreme Court invalidated all then-existing death penalty statutes.5 Each of the Justices in the majority wrote separately, and no clear consensus emerged as to why the death penalty, which had been upheld against constitutional attack just the year before,6 was now unconstitutional. At the risk of oversimplification, the constitutional rub arose from the fact that the death penalty was imposed in only a fraction of cases in which it was legally available and the Justices could divine no rational basis explaining why some offenders were sentenced to death while others were spared.7 For this reason, the Court found that all state systems of capital punishment allowed for arbitrary and capricious imposition of capital punishment.8 Justice Brennan’s concurring opinion captures this sentiment: “When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system.”9 There was, in short, no “rational basis that could differentiate in those terms the few who die from the many who go to prison.”10 The fear that racial discrimination 5. 408 U.S. 238, 239–40 (1972). 6. See McGautha v. California, 402 U.S. 183, 193 (1971) (rejecting the argument that the absence of standards to guide jury’s discretion in death penalty sentencing was “fundamentally lawless” and violated the Fourteenth Amendment). 7. In most pre-Furman schemes, including South Carolina’s, the jury decided the issue of the defendant’s guilt and the appropriateness of the death penalty in the same unitary proceeding. See S.C. CODE § 16-52 (Michie 1962), invalidated by Furman v. Georgia, 408 U.S. 238 (1972) (current version at S.C. CODE ANN. § 16-3-20 (2010)). If the jury found the defendant guilty of murder, it would recommend mercy if it thought a life sentence was appropriate and would not recommend mercy if it favored death. Id. 8. See Gregg v. Georgia, 428 U.S. 153, 188 (1976) (“Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.”). 9. Furman, 408 U.S. at 293 (Brennan, J., concurring). 10. Id. at 294. Justice Stewart echoed Justice Brennan’s concerns: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and freakishly imposed.” Id. at 310 (Stewart, J., concurring). Justice White voiced similar objections to imposing capital punishment, stating, “the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases VANN BLUME (DO NOT DELETE) 9/23/2016 10:00 AM Included with letter from SCCID to Oversight Subcommittee (September 7, 2018) 2016] THE DEATH PENALTY IN SOUTH CAROLINA 185 played a significant role in the death selection process was also of grave concern to several members of the Court.11 The primary flaw in the statutes before the Court creating the intolerable arbitrariness was that jurors had complete and unguided discretion in deciding whether a capital defendant should receive the death penalty or life in prison.12 Many states, including South Carolina, rushed to create capital sentencing schemes that would satisfy the new constitutional standard.13 The post-Furman statutes fell into two broad categories: mandatory death penalty statutes and guided discretion statutes. Both types of new death penalty laws were intended to reduce the role of jury discretion. The mandatory statutes did so by eliminating it; if a defendant was found guilty of a capital offense, then the death penalty was imposed—no ifs, ands, or buts. The guided discretion statutes attempted to reduce arbitrariness by creating new procedures. The central features of most guided discretion schemes included bifurcated trial (separating the issues of guilt-or-innocence and punishment), the creation of statutory aggravating circumstances limiting eligibility for capital punishment, permitting consideration of mitigating circumstances, and mandatory appellate review (including proportionality review). By 1976, the new laws made their way back to the U.S. Supreme Court. The Court upheld the guided discretion statutes, but concluded that the mandatory statutes violated the Eighth Amendment.14 in which it is imposed from the many cases in which it is not.” Id. at 313 (White, J., concurring). 11. See, e.g., id. at 242 (Douglas, J., concurring) (opining it was “incontestable that the death penalty inflicted on one defendant is ‘unusual’ if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices”). Justice Marshall agreed, stating “It is immediately apparent that Negroes were executed far more often than whites in proportion to their percentage of the population.” Id. at 364–65 (Marshall, J., concurring). 12. See Gregg v. Georgia, 428 U.S. 153, 189 (1976) (“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited as to minimize the risk of wholly arbitrary and capricious action.”). The South Carolina Supreme Court, following Furman, struck down the South Carolina statute in State v. Gibson, 259 S.C. 459, 462 (1972). 13. See State v. Rogers, 270 S.C. 285, 288, 242 S.E.2d 215, 216 (1978) 14. The Court granted certiorari in five cases. Gregg v. Georgia, 428 U.S. 153 (1976), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976), involved guided discretion statutes of various types that were deemed constitutional. Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), involved mandatory statutes that were invalidated. While beyond the scope of this article, the Texas statute was (and is) a “hybrid” falling somewhere between guided discretion and mandatory in classification and most commentators assert, and we agree, if the Supreme Court had it to do over again they would have invalidated the Texas statute in 1976 as well. See, e.g., Jordan Steiker, Penry v.

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