Journal of Criminal Law and Criminology Volume 69 Article 4 Issue 2 Summer

Summer 1978 Capital Punishment: Death for Murder Only Stewart W. Karge

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Recommended Citation Stewart W. Karge, Capital Punishment: Death for Murder Only, 69 J. Crim. L. & Criminology 179 (1978)

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COMMENTS

CAPITAL PUNISHMENT: DEATH FOR MURDER ONLY

During the decade of the 1970's, the penalty of cording to Granucci, infliction of "barbarous" pun- death has come under serious constitutional chal- ishments that were proportionate to the crime were lenge through the eighth amendment's proscrip- not considered cruel and unusual.5 tion against cruel and unusual punishment. The The English cruel and unusual phrase was well Supreme Court has upheld the per se constitution- known to the Americans who incorporated it into ality of capital punishment,' yet it is still faced the American Bill of Rights. Reverend Nathaniel with numerous problems of application: For what Ward of Ipswich, Massachusetts introduced the crimes will capital punishment be constitutionally concept of cruel and barbarous punishments into authorized? By what standards will those crimes be the colonial laws through his writings entitled Body selected? Can a definitive constitutional list be of Liberties.6 Ward wrote: "For bodily punishments established or will it be possible for the list of we allow amongst us none that are inhumane, constitutional capital offenses to be expanded? barbarous or cruel.",7 His emphasis on the "bar- This comment, after exploring the history of the barous" nature of punishments influenced inter- eighth amendment and its relationship to capital pretation of the phrase in America. punishment, will examine and attempt to answer By the time the first Congress included the Eng- these questions in light of this history and the lish Bill of Rights' phraseology of cruel and unusual plethora of recent Supreme Court decisions. punishment into the eighth amendment of the United States Constitution, the clause had come to HISTORICAL ORIGIN OF THE EIGHTH mean something quite different from unauthorized AMENDMENT'S PROSCRIPTION AGAINST CRUEL and disproportionate penalties.8 A greater empha- AND UNUSUAL PUNISHMENT sis was placed on the barbarous nature of the cruel The prohibition against excessive punishment and unusual phrase. Evidence of the subtle change can be traced back in Western civilization to the in meaning can be seen in the debates of the Bible's Old Testament. 2 The prohibition against various state conventions called to ratify the Con- "cruel and unusual" punishments, however, can be stitution as well as in the debates of the first traced back no further than the English Bill of Congress considering the Bill of Rights. Patrick Rights of 1689.3 At the time the phrase was incor- Henry, a delegate to the Virginia ratifying conven- porated into the English Bill of Rights, it was tion, strongly opposed the absence of a "cruel and considered "first an objection to the imposition of unusual punishment" proscription in the Consti- punishments which were unauthorized by statute tution: and outside the jurisdiction of the sentencing court, What has distinguished our ancestors?-That they and second, a reiteration of the English policy would not admit of tortures, or cruel and barbarous against disproportionate penalties." 4 However, ac- punishments. But Congress may introduce the prac- 'Gregg v. Georgia, 428 U.S. 153, 194 (1976). tice of the civil law, in preference to that of the common law. They may introduce the practice of 2 Leviticus 24:19-20 (Revised Standard Version 1952). France, Spain, and Germany-of torturing, to extort One of the Laws given to Moses by God, an eye for an a confession of the crime.9 eye and a tooth for a tooth, though today viewed as merely retribution, may be viewed as the delimitation of Complaints of a similar nature were voiced *at the the upper limits of punishment. See Granucci, "Nor Cruel Massachusetts convention: "They [Congress] are and Unusual Punishments Inflicted:" The OriginalMeaning, 57 CALIF. L. REX'. 839, 852-53 (1969) (Granucci's article 5 Id. at 844. was cited in Gregg v. Georgia, 428 U.S. at 169, for inter- This writing served as the laws of colonial Massachu- preting the meaning of the eighth amendment). setts in 1641. 3 Granucci, supra note 2. The tenth declaratory clause 7Granucci, supra note 2, at 851. 8 of the English Bill of Rights reads: "That excessive bail Id. at 860. ought not to be required, nor excessive fines imposed; nor 9 3 J. ELI.IOr, THE DEBATEs IN "TE'. SEVERAL Sm-rF cruel and unusual punishments inflicted." Id. CONVENTIONS ON THE ADOPrION OF THi-: FEDERAL 4Id. at 860. CONr'UTION 447-48 (1881). COMMENTS [Vol. 69

nowhere restrained from inventing the most un- ness of the standard of cruel and unusual, adopted

heard-of punishments and annexing them to the theory that punishments involving6 torture and crimes; and there is no constitutional check on unnecessary cruelty were forbidden.' be amongst The Supreme Court's first approval of capital them, but that racks and gibbets may 10 the most mild instruments of their discipline." punishment per se was evidenced in dicta of In re The recurring theme of these attacks made upon Kemmler.17 Kemmler, convicted of first degree mur- the proposed Constitution was the fear of barba- der, challenged again the constitutionality of the rous punishments, inflicted by Congress without method of execution, which this time was electro- constitutional check. The congressional expressions cution.'8 The Court, after citing Wilkerson with of concern regarding cruel and unusual punish- approval, stated: "Punishments are cruel when ment centered primarily around quieting those they involve torture or a lingering death; but the fears regarding barbarous and disproportionate punishment of death is not cruel, within the mean- punishments." ing of that word as used in the Constitution. It implies there something inhuman and barbarous, EARLY EIGHTH AMENDMENT CAPITAL something more than the mere extinguishment of PUNISHMENT CASES life."' 9 More was needed than the mere extinguish- The first eighth amendment case dealing with ment of a human life for the eighth amendment to capital punishment did not challenge the consti- prevent an execution for a capital crime; however, tutionality of the theory of capital penalties, but the Court failed to further enunciate the param- rather challenged the method of execution em- eters of that 'something more" in Kemmler. ployed in carrying out the sentence.1 2 Wilkerson v. In 1946 the Court decided Louisiana ex rel. Francis 20 Utah,'3 determined that shooting was not a cruel v. Resweber, based upon a set of facts ironically and unusual mode of executing the-death penalty close to the worst fears argued by the petitioner in for the crime of murder. The appellant, Wilkerson, Kemmler. The prisoner, Francis, convicted of mur- being charged and convicted of first degree murder, der and sentenced to be electrocuted to death, challenged his sentence of death by shooting on the survived the attempted electrocution, presumably 2 basis that the trial court had no statutory power to due to a mechanical malfunction. ' The question authorize shooting as the method of execution. The before the Court was whether a second attempt to Supreme Court, in rejecting his arguments, stated carry out the sentence of death by electrocution that while cruel and unusual punishments were would violate the eighth amendment.2 Allowing forbidden by the Constitution, the punishment of the state to issue a second warrant to put the death, executed by shooting, was not included prisoner to death, the Court reaffirmed the basic within those categories of punishments.14 The tenet of Kemmler and Wilkerson when it stated: Court's conclusion was reached, however, after an evaluation of the various methods used to carry 16Id. at 136. The Court failed to articulate any test of out a capital sentence, not as a result of an inves- what was unnecessarily cruel and unusual. 17 136 U.S. 436 tigation into whether death itself was cruel and (1890). 18Kemmler's position was that based upon the scien- unusual." In further describing what categories of tific evidence presented at his habeas corpus hearing, a punishments were proscribed by the eighth amend- sufficient force of electricity could not be produced to kill ment, the Court, after acknowledging the evasive- a human being quickly and with certainty thus the punishment to be inflicted upon him would be cruel and 10 2 id. at 111 (emphasis in original). unusual. 1 ANNALS OF CONGRESS 782-83 (1789). '9 136 U.S. at 447. 12Wilkerson v. Utah, 99 U.S. 130 (1878). 20329 U.S. 459 (1946). 13Id. at 134-35. The Court refused to face the eighth 21Id at 460. amendment-capital punishment issue squarely, deciding 22A second issue not germane to this comment was instead that the eighth amendment did not apply to state whether a second attempt to electrocute Francis violated action. Although it was not until Robinson v. California, the double jeopardy clause of the fifth amendment. The 370 U.S. 660 (1962), that the Court finally ruled that the Court assumed without deciding that violation of either eighth amendment did apply to state action through the the fifth or eighth amendments would also violate the fourteenth amendment, the earlier cases did not have to fourteenth amendment's due process clause through reach this issue, because they found that the penalties which Francis attacked the efforts of the state to attempt imposed in the various cases did not violate the cruel and a second execution. The Court also found no fifth amend- unusual standard. See note 21 infra. ment violation because there was no due process viola- 1499 U.S. at 134-35. tion. '5Id. at 134. CAPITAL PUNISHMENT

The cruelty against which the Constitution protects Rights.28 The chief controversy centered around a convicted man is cruelty inherent in the method of the punishment for falsifying a public record by a punishment, not the necessary suffering involved in government official.2 Finding that the penalty any method employed to extinguishlifehumanely.... There is no purpose to inflict unnecessary pain nor provided for did violate the cruel and unusual ban, any unnecessary pain involved in the proposed exe- the Court stated that the eighth amendment was cution.... We cannot agree that the hardship im- not limited to proscribing punishments considered posed upon the petitioner rises to that level of hard- merely "obsolete." Rather, the Court held that the ship denounced as denial of due process because of amendment should be considered "progressive," cruelty i acquiring meaning as the public becomes "en- lightened by a humane justice."' 3° The importance In interpreting just what the eighth amendment of this concept to the capital punishinent issue does proscribe, one commentator has suggested cannot be overemphasized. Had a different inter- that a punishment for a statutorily declared crime pretation been given to the clause, one which which was equivalent to the punishment for that would have frozen the penalties banned by the crime at common law, would not be cruel and cruel and unusual language to those that were unusual in constitutional terms.24 The courts took considered cruel and unusual at the time of the a similar position early that the eighth amend- provision's inclusion into the Constitution, clearly ment's prohibition pertained to certain methods of the penalty of death would have to be conceded punishment. by all to be constitutional.3 ' On the basis of Wilkerson, Kemmler and Francis, The conceptual framework of the eighth amend- one might argue that, although the Court never ment standard was again considered to be the frontally addressed an eighth amendment chal- progressive yet elusive test of "humane justice" in lenge to capital punishment, the Court had sub Trop v. Dulles. 2 This case was another non-capital silentio approved the constitutionality of the pen- punishment eighth amendment case with impor- alty.25 Yet the Court failed to articulate any criteria tant ramifications for capital penalties. In Trop the for applying the cruel and unusual proscription. Court struck down a non-capital criminal penalty The first Supreme Court cases attempting to state as being violative of the eighth amendment.? Chief such criteria were non-capital punishment cases. " The Court held that a provision of the Philippine IMPORTANT NON-CAPITAL EIGHTH Bill of Rights taken verbatim from the United States Constitution must have the same meaning, 217 U.S. at AMENDMENT CASES 367, and so interpreted the Philippine provision in the Eighth amendment decisions dealing with non- same way as its American counterpart. The penalty was a fine of 4,000 pesos, hard labor for capital penalties have given the cruel and unusual the state from 12 to 20 years with chained ankles and prohibition another dimension beyond an exami- wrists, perpetual disqualification from political rights, nation of the barbarous methods employed in including the rights to vote and hold office, and subjec- 27 tion to surveillance for life. 217 U.S. at 351. carrying out sentences.26 In Weems v. United States, 3 the Court was presented with an application of the Id. at 378. 31The most recent exponent of such an interpretation cruel and unusual prohibition outside the context was Justice Rehnquist in his dissent in Woodson v. North of capital punishment. This particular case in- Carolina, 428 U.S. 308 (1976) (Rehnquist, J., dissenting), volved the cruel and unusual proscription which where he stated: "As an original proposition, it is by no had been incorporated into the Philippine Bill of means clear that the prohibition against cruel and unu- sual punishment embodied in the Eighth AmendMent ...was not limited to those punishments deemed cruel 23 329 U.S. at 464 (emphasis added). and unusual at the time of the adoption of the Bill of I T. COOLEY, A TREATISE ON THE CONSTITU- Rights." Id. Justice Rehnquist is not alone in this inter- TIONAL LIMITATIONS WHICH REST UPON THE LEGIS- pretation. In the Weems case itself, Justices White and LATIVE POWER OF THE STATES OF THE AMERICAN UN- Holmes dissented arguing this very point. 217 U.S. at ION 694 (8th ed. 1927). 389-413 (White, Holmes, J.J., dissenting). 25 The idea that death itself was not subject to an 32356 U.S. 86, 100 (1958) (Warren, C.J., plurality eighth amendment attack is highlighted by the Court opinion). noting in Wilkerson that the defendant did not even The issue in Trop was whether denationalization of attempt to raise that issue. 99 U.S. at 136-37. a natural born United States citizen was a constitutional 26 Trop v. Dulles, 356 U.S. 86, 100 (1958) (Warren, penalty for conviction of desertion from the Armed Serv- C.J., plurality opinion); Weems v. United States, 217 ices during time of war. The Court found that such a U.S. 349, 378 (1910). penalty did in fact go beyond the eighth amendment and 27217 U.S. 349 (1910). the sentence was struck down. Id at 103. COMMENTS JVnl. 69)

Justice Warren, speaking for the four Justice plu- the Court effectively sidestepped answering the rality,: contended that while the "still widely ac- fundamental question of the eighth amendment's cepted" penalty of death could not then be consid- cruel and unusual clause by phrasing the issue to ered violative of the eighth amendment, "the basic be decided as whether the death penalty, as applied concept underlying the Eighth Amendment is in the cases before it, violated the eighth amend- ' : nothing less than the dignity of man. 3"This con- ment. The result of the fragmented, nine opinion clusion was reached without much discussion. After decision was a per curiam ruling which held that the ' referring to the English background of the eighth Georgia statute, 9 as applied, violated the eighth amendment, the "dignity of man" standard was and fourteenth amendments for being cruel and simply set forth. Nevertheless, considerations of unusual punishment. 40 Five Justices concurred 42 whether a punishment is "humane" or within "the with the result 4' and four Justices dissented. Jus- dignity of man" added a new dimension to the tices Brennan and Marshall were ready to declare constitutional inquiry, thus opening the door for any death penalty impermissible; 4 Justices Black- future attacks on the constitutionality of the pen- mun, Powell, Rehnquist and Chief Justice Burger alty of death itself. Though early attempts to col- were willing to declare capital punishment not per laterally attack capital punishment through attack- se unconstitutional;"4 while the remaining three ing the method of execution had not met with Justices, Douglas, Stewart and White, left the ques- a3 success, " the opponents of capital punishment tion open for future determination.4 5 could now hope that by providing the Court with In examining the five concurring opinions, one evidence that the penalty of death was contrary to can discern three different rationales. One rationale the "dignity of man," the eighth amendment could focused on the uncontrolled nature of the jury's directly prohibit the use of capital punishment. discretion which could result in arbitrary and ca- pricious imposition of the death penalty. This most TiHE Ft'R.IAN CONTROVERSY clearly can be seen in Justice Stewart's opinion On at least two occasions after the Trop decision where he compared being sentenced to death to the Court refused to entertain arguments on the being struck by lightning. 46 The freakish way in per se constitutionality of the death penalty. The which juries were perceived to apply the penalty of Court avoided the issue by limiting certiorari to death was thought to be an impermissible system the procedural aspects of capital punishment trials.3 7 The first time the Court actually heard arguments on the per se constitutionality of capital 225 Ga. 790, 171 S.E.2d 501 (1969). Branch was also a black, and also sentenced to death for the rape of a white punishment was in Furman v. Georgia."" However, wonman. lis sentence was affirmed by the Court of : Chief Justice Warren was joined by Justices Black, Criminal Appeals of Texas. 447 S.W.2d 932 (Tt.-x. CRiNI. 1969). l)ouglas and Whittaker. Justices Frankfurter, Burton, 39 GA. COiE ANN. § 26-1005 (Supp. 1971) (effective Clark and I larlan dissented. Id. at 114. Justice Brennan prior toJuly 1, 1969). As noted, Furnan was consolidated cast the final vote in an opinion concurring with the with two other cases, Jackson v. Georgia, No. 69-5030, result of the plurality, hut on different grounds. Id. at and Branch v. Texas, No. 69-5031. These other cases 10)5. involved GA. Cotp- ANN. § 26-1302 (Stipp. 1971) (effec- " 356 U.S. at 99, l(t1. tive prior to July 1. 1969) (providing death for the crime " See Franci,. 329 U.S. 459 (1947): Kenmnder. 1:36 U.S. Cf rape). and T:x. PENAi.COiE ANN., art. 1189 (Vernon, -136 (1890): and II'ilkerson. 99 U.S. 130 (1878). 1961) (providing death for the crime of rape). All three "'See McGautha v. California. 402 U.S. 183 (1971). statutes were found unconstitutional as applied. ,ert. granted 398 U.S. 936 (1970) (review limited to con- . 408 U.S. at 239-40. stitutionality of unguided jury discretion): and Wither- ' Id. at 241 (Douglas, J., concurring), 257 (Brennan, Spoon v. Illinois. 391 U.S. 510. cert. granted, 389 U.S. 1035 J., concurring), 306 (Stewart.J., concurring). 310 (White, (1968) (review limited to ccnstittitonality of excluding J., concurring), 314 (Marshall, J., concurring). venireien opposed to capital punishment). 42 Id. at 375 (Burger, C.J., dissenting) (joined by Black- :18401 U.S. 2:18 (1972). Furman was decided together mnu, Powell, and Rehnquist, J.J.), 465 (Rehnquist, J., with Jackson v. Georgia. No. i9-50:30 and Branch v. dissenting). Texas, No. 69 5031. Furinait a black 26 year uld male 4" Id. at 257 (Brennanj., concurring), 314 (Marshall, %,ithi a sixth grade education was convicted of iturder. J., concurring). The Georgia Supreme Court affirmed his conviction and 44 h. at 375 (Burger, C.J., dissenting) (joined by Black- sentence. 225 Ga. 253. 167 S.E.2d 628 (1969). Jackson inan. Powell and Rehnquist, J.J.), 465 (Rehnquist, J., was a black 21 year old male. Ile was serving a three dissenting). year senteu'nce for auto theft when lie escaped front a work 45 Id. at 240 (Douglas, J., concurring), 306 (Stewart, J.. gang and raped a white woman. I lis sentence of death concurring). 3110 (White, J., concurring). fin- ihe rape was affirned by the ;eorgia Supreme Court. "Id. at 309-- 10 (Stewart, ., concurring). 1978] CAPITAL PUNISHMENT

of justice.47 Justice White echoed this rationale in establish that the use of capital punishment dis- his concurring opinion when he emphasized his criminated against various socio-economic and ra- belief that because juries impose death so infre- cial groups.56 The principal assumption behind 4 quently, 8 the retribution justification for capital their arguments was that the penalty of death was punishment could never be satisfied no matter how the poor man's punishment; more specifically, it much the individual defendant may deserve death was the poor black man's punishment. According as a punishment.4 9 If the underlying justification to Justice Douglas, if the death penalty was to be for the punishment is missing, then there remains applied against such groups solely because of their no justification for imposing that penalty. Simi- race or economic standing, while other convicted larly, Justice White suggested that the deterrence criminals, equally culpable, received less than justification for capital punishment is not served death as a penalty then: "[T]hese discretionary by the infrequent imposition of death as a penalty. statutes are unconstitutional in their operation. "[C]ommon sense and experience tell us that sel- They are pregnant with discrimination and dis- dom-enforced laws become ineffective measures for crimination is an ingredient not compatible with controlling human conduct and that the death the ideal of equal protection of the laws that is penalty, unless imposed with sufficient frequency, implicit 57in the ban on 'cruel and unusual' punish- will make little contribution to deterring those ments." crimes for which it may be exacted. ' 5° Justice Stewart, briefly addressing himself to this The rationale of uncontrolled jury discretion and issue, maintained that racial or economic discrim- infrequent imposition as a constitutional flaw ap- ination had not been established in Furman and pears to conflict with an earlier holding in Mc- therefore should not be considered. 58 Indeed, none Gautha v. California,5s which concluded that a jury of the other Justices found racial discrimination to 59 need not be provided with standards to guide its be a factor. discretion in whether to recommend a sentence of death or life imprisonment. The dissenters in Fur- - See note 38 supra, for the backgrounds of the defend- man were all of one voice in pointing out the ants in Furman. s7408 U.S. at 256-57 (Douglas, J., concurring). apparent inconsistency of the two cases and attack- a Id. at 310 (Stewart, J., concurring). ing the concurring opinions for being unable to5 2 59Empirical studies not presented in Furman indicate legitimately distinguish McGautha from Furman. mixed results on these questions of economic and racial Justice Stewart, the main proponent of the jury bias. A Stanford study of the California standardlessjury discretion rationale, avoided mention of Mc- sentencing system between 1958 and 1966 indicated that once other variables were removed, "the defendant's race Gautha.s5 had no effect on the penalty variable." Note, A Study of A second underlying rationale that can be dis- the California Penalty in First-DegreeMurder Cases, 21 STAN. tilled from the concurring opinions is that the L. REv. 1297, 1421 (1969). An analysis of capital punish- death penalty was unconstitutional in Furman be- ment in Virginia, however, indicated the opposite con- clusion that racial discrimination does affect the appli- cause it was employed in a discriminatory fashion. s5 cation of the death penalty. Note, 58 VA. L. REv. 97, Justices Douglass and Marshall attempted to 134-35 (1972). The study noted that "[wlhile only fifty- five percent of those persons committed to penal institu- 471d at 310. tions for rape during the 1908 to 1963 period have been 48 At the time Furman was decided in 1972, no one had blacks, one hundred percent of those executed for this been excuted in the United States since 1967. U.S. Bu- offense have been blacks." Id. Another study of capital REAU OF THE CENSUS, DEP"T OF COMMERCE, HISTORI. punishment, this time in Texas, supported the Virginia CAL STATISTICS OF THE UNITED STA'ES: COLONIAL findings in rape cases concluding that "[tihe Negro con- TIMES TO 1970, at 422 (1975). victed of rape is far more likely to get the death penalty 49 408 U.S. at 311 (White, J., concurring). than a term sentence." Koeninger, Capital Punishment in 50 Id. at 312. Texas 1924-1968, 15 CRIME & DELINQUENCY 132, 141 5' 402 U.S. 183, 196 (197 1). (1969). Unfortunately the latter two studies only pre- 52408 U.S. at 398-401 (Burger, C.J., dissenting) sented raw statistical information and made no attempt (joined by Blackmun, Powell and Rehnquist, J.J.), 427 to remove other, factors so as to isolate race. Another n. 11 (Powell, J., dissenting). concern which must be taken into account is the geo- 53 The avoidance of this issue by the main proponent graphical locations of the studies. Given varying social of the jury discretion rationale and the author of the attitudes throughout different regions of the country, it Stewart plurality in Gregg merely delayed confrontation could be possible that all are correct in that in Virginia with the holding of McGautha. See text accompanying and Texas there was racial discrimination while in Cali- notes 118-20 infra. fornia none is present. Id. at 249-51 (Douglas, J., concurring). Regarding economic discrimination, the Stanford Id. at 365-66 (Marshall. J., concurring). study found that a blue collar background was an aggra- COMMENTS [Vol. 69

The third underlying rationale of the concurring difficult to see how personal sentiments can be opinions in Furman can best be described as the totally excluded from the analysis, especially when influence of morality. The moral implications of the applicable standard according to Brennan is the death penalty were considered at length by the "dignity of man." Justice Brennan and at least implicitly dealt with While not directly phrasing the language of his by Justices Marshall and White. Justice Brennan opinion in terms of morality, Justice Marshall still concluded from his interpretation of the American took a position somewhat similar to that of Justice and English history of the death penalty that the Brennan. Marshall explained his vote against cap- battle over capital punishment has long been ital punishment in all circumstances by concluding fought on moral grounds.60 Based upon the fact that if the "average citizen" was fully aware of all that death had become such a rarely used form of of the varied facts involved in the capital punish- punishment and that when it was imposed it was ment controversy he would "find it [capital pun- an unusually severe punishment, Brennan was pre- ishment] shocking to his conscience and sense of pared to say that he completely rejected capital justice." ' Marshall reasoned that in casting his punishment as "fatally offensive to human dig- vote against capital punishment per se, he was nity., 61 Justice Brennan rejected the deterrence merely exercising the choice of all of the people and retribution justifications for capital punish- were they as informed as he. In essence he was ment based upon his interpretation of society's stating his conception of the standards of morality rejection of those justifications: "Obviously, con- in the community at large. Justice Marshall's opin- cepts ofjustice change; no immutable moral order ion thus attempted to remove himself from the requires death for murderers and rapists.... [O]ur analysis and base his decision on some external society wishes to prevent crime; we have no desire6 2 factors (i.e., the standards of society). Although this to kill criminals simply to get even with them." is a more circuitous route, it led to the same It is difficult to analyze Brennan's opinion without resolution of the moral question as did Justice concluding that his ultimate decision against cap- Brennan's more straightforward approach. ital punishment is based upon his own moral con- Justice White's view more closely resembled Jus- victions.63 His conclusions were not based on any tice Marshall's opinion than that of Justice Bren- announced authority, leaving the reader to infer nan's in that White drew essentially a subjective that his personal beliefs formed the authority on conclusion based obstensibly upon some other ex- which he relied. One may quarrel with whether a ternal objectives. White reasoned that if the death Justice should ever inject his own personal beliefs penalty could not be shown to have some deterrent into the Constitution. When dealing with a provi- effect, it should be held unconstitutional as it would sion as amorphous as the eighth amendment's ban then merely provide for the "needless extinction of on cruel and unusual punishment, however, it is life." 65 White, however, reserved the right to up- hold death as a penalty should he be convinced vating influence while a white collar background was a mitigating factor in determining whether to impose death that capital punishment served more than just the as a penalty. See 21 SIAN. L. REv. at 1421. The Texas needless extinction of life. Reserving the final de- study similarly concluded that application of capital cision separates Justice White's approach from that punishment was not equal, and that most of those that of both Justices Brennan and Marshall. White's were executed fit into the poor, young and ignorant analysis would appear to be based on traditional category. See 15 CRIME & DELINQUENCY at 141. 60408 U.S. at 296 (Brennan, J., concurring). See id. at penology and to be more receptive to empirical 316-28 (Marshall. J., concurring), for the specifics of the evidence. Marshall's conclusion was based on what history Brennan relies on which mainly consists of an society "should" conclude about capital punish- examination of the Court's treatment of the cruel and ment, and Brennan's conclusion was based on his unusual proscription. 61 408 U.S. at 305 (Brennan, J.. concurring). own interpretation of society's rejection of the 62 Id. at 304-05. death penalty. 63This conclusion is reinforced by Justice Brennan's Speaking through Chief Justice Burger, the dis- dissent in Gregg v. Georgia, 428 U.S. 227, 229 (1976) senters objected to the intrusion of the morality (Brennan, J., dissenting): issue into the constitutional equation. What Bren- This Court inescapably has the duty ...to say whether ..."moral concepts" require us to hold nan and Marshall were doing, the Chief Justice that the law has progressed to the point where we charged, was to usurp the legislative power of the should declare that the punishment of death ...is states by restricting capital punishment based on no longer morally tolerable in a civilized society. My opinion in Furman v. Georgia concluded that our 64408 U.S. at 369 (Marshall, J., concurring). civilization and law had progressed to this point.... 65 Id. at 312 (White, J., concurring). CAPITAL PUNISHMENT

their own moral value judgements. The Chief Jus- Chief Justice Burger, was to force all of the states tice countered with his own view of the Court's that desired to retain death as a penalty to review duty by saying: and amend their capital punishment statutes. Thus the states directly had the capital punishment issue Our constitutional inquiry ... must be divorced before them, with the opportunity to make judg- from personal feelings as to the morality and efficacy ments as to whether death should remain as a of the death penalty, and be confined to the meaning and applicability of the uncertain language of the penalty. Indeed, there was considerable legislative Eighth Amendment .... [Ilt is essential to our role activity in the years immediately following the as a court that we not seize upon the enigmatic Furman decision. Thirty-five of the thirty-nine states character of the guarantee as an invitation to enact that had pre-Furman death penalty statutes re-en- our personal predilections into law.6 acted capital punishment for at least the crime of murder, as that crime was defined in each state.7' Burger looked to the legislative judgments of the Three of the remaining four states that had pre- states and the historical background of the eighth Furman death penalty statutes simply left those amendment, discussed above, and determined that statutes on the books without modification.72 While the eighth amendment did not per se invalidate this survey does not take into consideration the capital punishment. He noted that thirty-nine states' judicial response, the important factor was states, the District of Columbia and the federal the legislative response; because regardless of government had capital statutes on the books for whether the re-enactment of the capital statutes at least some crimes.6 This indicated to the Chief were procedurally valid, these initial legislative Justice that there was considerable public senti- responses were clear indications of contemporary ment to find death an acceptable sanction in at values concerning the "dignity of man." least some circumstances. Turning to the procedural questions of the states' Because all capital statutes allowed unbridled capital punishment response, two different types of jury discretion in determining the penalty, the statutes were enacted in the post-Furman legislative Chief Justice recognized that the effect of Furman activity. One response was the mandatory sentenc- would be to force all states that still wanted to ing statute, illustrated by the law re-enacted by impose death as a penalty to re-evaluate capital Louisiana: "Whoever commits the crime of first punishment in a contemporary setting to deter- degree murder shall be punished by death."73 mine the efficacy of capital punishment in today's There is no discretion under such statutes for a society. Burger welcomed this opportunity for the jury to arbitrarily, capriciously or freakishly impose states to re-evaluate their statutes and policies be- the sentence of death on only certain defendants cause he believed that the legislatures were the while meting out different punishment for other appropriate level at which such determinations 6 guilty defendants. Eliminating all jury discretion be most effectively made. 8 could was viewed as one way to satisfy at least the first After Furman the largest question unanswered two underlying rationales in Furman.74 Under a was whether the Court would declare death per se mandatory sentencing system, it was assumed that unconstitutional as a sanction for any crime under juries could not discriminate against racial or social any circumstance. The Court had split in so many groups unless they convicted only members of dis- directions that any prediction of how the issue favored groups and acquitted most of all other would eventually be resolved was of necessity guess- defendants charged with capital offenses. Yet this work. The Furman opinions gave no hint of how to type of discrimination was perceived as actually meet the eighth and fourteenth amendment chal- occurring under the mandatory death penalty stat- lenges. The case Simply stated that the particular capital punishment statutes, as applied, violated 71See Gregg v. Georgia, 428 U.S. at 179-80 n.23. the cruel and unusual provision of the eighth and 9 72Kansas (K.S.A. § 21-3401, 21-4501 (1969)), New fourteenth amendments.6 As for rationales for the STAT. ANN. 70 Jersey (N.J. § 2A: 113-4 (West 1924)) and result, one could take one's pick. South Dakota (S.D. COMPILED LAws ANN. § 22-16-12 The practical result of Furman, as predicted by (1939)) were the three states that left their pre-Furman captal statutes on their books. LA. REV. STAr. ANN. § 14:30 (amended 1973). 6 Id. at 375-76 (Burger, C.J., dissenting). 74For discussion of the three underlying rationales of 67 Id. at 385 &n.7. Furman, see text accompanying notes 46-65 supra. Since mId. at 403. the third rationale was based on morality, no alternative 0 Id. at 239-40. procedural 70 See text accompanying notes 46-65 supra. system could possibly satisfy Justices Marshall and Brennan. COMMENTS [Vol. 69

utes of the nineteenth century. 75 The discrimina- This type of plan was intended to allow the jury to tion and general reluctance of juries to return particularize the punishment of death only to those verdicts of guilty, knowing the only sentence could defendants who had aggravated the circumstances be death, perverted the criminal justice system. of their offense in some way enumerated by the Jury nullification, as this concept is called, was one legislature. At the same time, this procedure al- of the reasons why all the states rejected mandatory lowed thejury to spare the life of a guilty defendant sentences76 in favor of the discretionary sentencing if none of the statutory "extras" was present, or if statutes prior to the Court's ruling in Furman. mitigating factors dictated. This scheme was de- As an alternative to the manadory sentencing signed to reduce the jury nullification problem. statute, some states created a guided-jury discretion It was no accident that all states desiring to scheme. For example, the Georgia statute provided retain capital punishment after Furman adopted that: "Where, upon a trial by jury, a person is one of these two alternatives. Both of these statu- convicted of an offense which may be punishable tory plans were suggested by Chief Justice Burger by death, a sentence of death shall not be imposed as possible statutory options in his Furman dissent.78 unless the jury verdict included a finding of at least The Chief Justice found flaws in both of the two one statutory aggravating circumstance and a rec- alternatives, but they appeared to him to be the ommendation that such sentence be imposed. 77 only choices left open, consistent with the Furman concurrances, for states that still wanted capital 75See Mackay, The Inutilty of Mandatory CapitalPunish- punishment. Burger's problem with the mandatory ment: An HistoricalNote, 54 B.U.L. RFvA. 32 (1974). Mackay quotes the editor of the Providence, Rhode IslandJournal scheme was jury nullification. Implicit in his opin- of January 9, 1838 as saying: "Unless the prisoner, from ion was the concept that not all criminals convicted his color or extraction, is cut off from ordinary sympathy, he is almost sure of an acquittal." Id. 76See W. BOWERS, EXECUTIONS IN AMERICA 7-9 (5) The murder of a judicial official, former (1974). judicial official, district attorney or solicitor or 77GA. CODE ANN. § 26-3102 (1977 Supp.). The statu- former district attorney or solicitor during or tory aggravating circumstances are set out in GA. CODE because of the exercise of his official duty. ANN. § 27-2534.1: (6) The offender caused or directed another to (a) The death penalty may be imposed for the commit murder or committed murder as an offenses of aircraft hijacking or treason, in any case. agent or employee of another person. (b) In all other offenses for which the death penalty (7) The offense of murder, rape, armed rob- may be authorized, the judge shall consider, or he bery or kidnapping was outrageously or wan- shall include in his instructions to the jury for it to tonly vile, horrible or inhuman in that it in- consider, any mitigating circumstances or aggravat- volved torture, depravity of mind, or an aggra- ing circumstances otherwise authorized by law and vated battery to the victim. an), of the following statutory aggravating circum- (8) The offense of murder was committed stances which may be supported by the evidence. against any peace officer, corrections employee (1)The offense of murder, rape, armed rob- or fireman while engaged in the performance bery, or kidnapping was committed by a per- of his official duties. son with a prior record of conviction for a (9) The offense of murder was committed by capital felony, or the offense of murder was a person in, or who has escaped from, the committed by a person who has a substantial lawful custody of a peace officer or place of history of serious assaultive criminal convic- lawful confinement. tions. (10) The murder was committed for the pur- (2) The offense of murder, rape, armed rob- pose of avoiding, interfering with, or prevent- bery, or kidnapping was committed while the ing a lawful arrest or custody in a place of offender was engaged in the commission of lawful confinement, of himself or another. another capital felony, or aggravated battery, (c) The statutory instructions as determined by the or the offense of murder was committed while trial judge to be warranted by the evidence shall be the offender was engaged in the commission of given in charge and in writing to the jury for its burglary or arson in the first degree. deliberation. Thejury, if its verdict be a recommen- (3) The offender by his act of murder, armed dation of death, shall designate in writing, signed robbery, or kidnapping knowingly created a by the foreman of the jury, the aggravating circum- great risk of death to more than one person in stance or circumstances which it found beyond a a public place by means of a weapon or devise reasonable doubt. In non-jury cases the judge shall [sic] which would normally be hazardous to make such designation. Except in cases of treason the lives of more than one person. or aircraft hijacking, unless at least one of the (4) The offender committed the offense of statutory aggravating circumstances enumerated in murder for himself or another, for the purpose section 27-2534.1 (b) is so found, the death penalty of receiving money or any other thing of mon- shall not be imposed. etary value. 78 408 U.S. at 400-01 (Burger, C.J., dissenting). 19781 CAPITAL PUNISIMENT of capital offenses should receive the ultimate pen- capital punishment per se was not unconstitu- 8 alty of death. The problem with guided-jury dis- tional. 2 These cases further resolved the procedural cretion statutes as the ChiefJustice saw it, was that questions of how capital punishment could be con- of codifying the seemingly infinite variety and stitutionally applied by validating the guided-jury complexity of circumstances that might determine discretion statutes while striking down the man- who should and who should not receive the death datory statutes.- 79 penalty. Although the Court was not as divided as in The aftermath of Furman left the procedural Furman, there was again no majority opinion in aspects of the capital punishment question divided Gregg or in any of its companion cases. The seven among those states that opted for mandatory death Justices who voted in favor of capital punishment sentences of strictly defined offenses, and those gravitated to two plurality opinions. Justice Stew- states that chose to guide the jury's discretion with art officially announced the opinion of the Court defined factors the jury had to consider before it in each of the five cases, but only Justices Powell opinion.84 could impose death. and Stevens adhered to that Drawing from Furman, Trop and the general LIMIrED ACCEPTANCE OF CAPITAL background of eighth amendment cases, the Stew- PUNISHMENT art plurality reaffirmed that the test of the eighth The next set of cases to reach the Court squarely amendment's cruel and unusual clause was "the presented the eighth amendment questions which evolving standards of decency that mark the prog- '' the Court had not decided in Furman. The five ress of a maturing society.8 In answering whether cases before the Court in the 1976 Term asked the such standards permitted the sanction of death, the two major questions left unanswered by Furman: Stewart plurality looked to objective rather than (1) Was capital punishment per se violative of the subjective indicia of public attitudes. The fact that 6 7 eighth and fourteenth amendment, and (2) if not, thirty-five states8 and the federal government under what procedural mechanisms could a state the crime impose the ultimate penalty of death for sonable doubt there existed a probability that Jurek of murder? Gregg v. Georgia' and its companion would constitute a continuing threat to society through casess t answered the first issue by holding that continued acts of violence. The Judge sentenced Jurek to death, and the Texas Court of Criminal, Appeals af- 79Id. at 401. firmed. 522 S.W.2d 934 (Tex. Crim. 1975). In Woodson, 8o 428 U.S. 153 (1976). For a full discussion of Gregg the several petitioners were charged with first-degrce and its companion cases, see Note, 67 J. CRiM. L. & C. murder resulting from an armed robbery. During the 437 (1976). In Gregg, the petitioner, Troy Gregg, was course of the robbery, the cashier was killed and a cus- charged with two counts of armed robbery and murder. tomer was seriously wounded. While several defendants Gregg picked up two men hitchhiking, robbed them and entered the store to rob it, the petitioner and one other shot them in the head. The jury returned verdicts of accomplice remained in the car. The petitioner main- guilty and sentences of death on each count. Following tained he was coerced into the robbery, while one of the Georgia's statutory system of review, the Georgia Su- defendants who entered the store claimed that another preme Court affirmed the convictions and sentence of defendant actually shot the victim. Petitioners were con- death for the murders, but vacated the death sentence on victed of murder and as required by the mandatory the armed robbery charge finding death an improper statute of the state, sentenced to death. The Supreme sentence for armed robbery. It also found that the jury Court of North Carolina affirmed. 287 N.C. 578,215 S.E. had improperly considered the murders as an aggravating 2d 607 (1975). In Roberts, the petitioner was convicted of circumstance to the robbery. 233 Ga. 117, 127, 210 S.E. killing a gas station attendant in the course of an armed 2d 659, 667 (1974). robbery with three other men. The Louisiana mandatory 81 Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. sentencing statute required death as a penalty, and the Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, Supreme Court of Louisiana affirmed. 319 So. 2d 317 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (La. 1975). (1976). In Proffitt, the petitioner was convicted of murder 82 Gregg v. Georgia, 428 U.S. at 169. during the course of burglarizing the victim's home. The 'aBefore the Court in the five cases were both the jury recommended death and the trial judge imposed mandatory sentencing alternative-Woodson v. North that sentence after finding certain aggravating circum- Carolina, 428 U.S. 280, and Roberts v. Louisiana, 428 stances. No mitigating factors were found to counter the U.S. 325-as well as the guided jury discretion death sentence. The Florida Supreme Court affirmed the model-Gregg v. Georgia, 428 U.S. 153: Proffitt v. Flor- sentence. 315 So. 2d 461 (Fla. 1975). In Jurek, the peti- ida, 428 U.S. 242; and Jurek v. Texas, 428 U.S. 280. tioner was convicted of murdering a 10 year old girl by HHereinafter cited as the Stewart plurality. choking and drowning her in the course of kidnapping Gregg v. Georgia, 428 U.S. at 173 (quoting Trop v. and attempting to rape her. The jury affirmatively an- Dulles, 356 U.S. at 101). and also the question "6428 U.S. at 179-80 n.23. swered the question ofJurek's guilt 87 of whether the evidence established that beyond a rea- Id. at 180 n.24. COMMENTS [Vol. 69

enacted statutes since Furman calling for death as a the plurality concluded that such a complex factual sanction was viewed as "the most marked indica- issue is better evaluated by the legislatures, not the tion of society's endorsement of the death penalty courts,96 and the Justices refused to hold that the for murder.' ' ss Beyond the legislative response, the legislative judgments favoring capital punishment Stewart plurality looked to jury verdicts under were clearly erroneous. these statutes as a "significant and reliable objec- Justice White authored a second plurality opin- tive index of contemporary values. ' '89 The signifi- ion 97 which closely paralleled much of the Stewart cant number of verdicts (460) sanctioning death plurality's reasoning on the first issue of whether indicated to the Stewart plurality that capital pun- capital punishment for murder was per se uncon- ishment remained "a 9 continued9 utility and neces- stitutional. 8 The legislative response to Furman was sity ... in appropriate cases."' used by the White plurality, as it was by the Mere public acceptance of capital punishment, Stewart plurality, to demonstrate that capital pun- however, does not automatically end all eighth ishment was not viewed as an "excessively cruel or amendment inquiries. Since the basic tenet under- severe punishment" for every crime.99 The wide- lying the eighth amendment remained the "dignity spread re-enactment of capital punishment after of man," the Stewart plurality had to assure itself Furman was evidence to the White plurality that that death as a penalty for murder was not exces- life imprisonment was not "adequate punishment sive. Such a standard of excessiveness requires that to satisfy the need for reprobation or there be no "unnecessary and wanton infliction of retribution.' ° The question of whether the death pain" and secondly that "the punishment must not penalty served as a deterrent was admittedly not be grossly out of proportion to the severity of the open to final resolution, but the White plurality, crime." 9' As a check upon unnecessary infliction of again with a view towards the strong legislative the death penalty, the Stewart plurality looked to response to Furman, would not "denigrate these the legislative expedited appellate review provided for in the judgments as some form of vestigial' ° state statutes to ensure that the capital sentences savagery or as purely retributive in motivation."'O would be proportional to other sentences for similar Such legislative judgments are to be treated with crimes.92 The Stewart plurality turned then to the deference, and the eighth amendment requires that two penological justifications of retribution and the legislative plans to be invalidated only if it can deterrence to conclude that capital punishment for be shown that life sentences serve the criminal murder did not involve "unnecessary and wanton justice system as well as capital punishment."°e Un- infliction of pain" and was not "grossly out of convinced that such a showing had been made, the proportion to the severity of the crime" of murder. White plurality refused to interfere with the judg- Although retribution was not viewed as a domi- ments of the legislatures."3 nant objective of criminal law, the plurality de- Justices Brennan and Marshall, adhering to their cided that neither was it a forbidden objective, nor Furman opinions, voted to hold capital punishment one inconsistent with the "dignity of man." 93 Even per se unconstitutional.3 4 Neither was persuaded though many might find the idea of retribution from their moralistic opposition to capital punish- unappealing, the Stewart plurality expressed the ment by the fact of overwhelming legislative reac- fear that "the seeds of anarchy-of self-help, vigi- tion in favor of the death penalty. Justice Marshall lante justice and lynch law" are sown if society acknowledged that the legislative response was con- comes to believe that criminals 94 are not getting what they "deserve." ' Id. at 186 (citing Furman v. Georgia, 408 U.S. at Further, the Stewart plurality found that the 403-05 (Burger, CJ., dissenting)). long-standing debate regarding the deterrent effect ' Chief Justice Burger and Justices Blackmun and 95 Rehnquist joined Justice White in this second plurality. of capital punishment was inconclusive. Thus, 9 Roberts v. Louisiana, 428 U.S. at 337 (White, J., dissenting) [hereinafter cited as sId. at 179. the White plurality]. The White plurality's views were expressed in a dissenting 9Id at 181. opinion in Roberts instead of in a concurring opinion in 90Id. at 182. Gregg because of their disagreement with the Stewart 91 Id. at 173. 9 2 plurality over the mandatory sentences being invylidated. 93 Id. at 198. 9 Id. at 353. Id. at 183. '0 Id. at 354. 9 Id. (quoting Furman v. Georgia, 408 U.S. at 308 '1 Id. at 355. (Stewart, J., concurring)). 102id 95Id. at 184-85. '03 l at 355-56. CAPITAL PUNISHMENT

trary to his prediction that the citizenry would of not practicing what it was preaching, Justice reject capital punishment, but he maintained that White admonished them for allowing what he his prediction was based on the judgments of an considered their personal preferences to make pol- "informed citizenry," and contended that such an icy by invalidating the mandatory statutes through informed society would reject death as an immoral misuse of the Court's judicial power.'0t The proper punishment.'t 5 analysis for the Court, according to the White The second major issue in each of the five cases plurality, was not what statutory system would be before the Court was the procedural problem of the best, but rather whether the system chosen by how to constitutionally impose the death penalty those legislatures satisfies the constitutional re- in light of Furman. It is here that the two pluralities quirements. The mandatory sentencing procedures diverged. The Stewart plurality decided that the did eliminate the problem ofjury discretion found guided-jury discretion plans in Gregg, Proffilt and in the pre-Furman statutes. The White plurality Jurek passed the constitutional standards set out in would not invalidate such statutes merely because, Furman, while the mandatory sentencing statutes of were they legislators, they would have preferred Woodson and Roberts did not.1°6 some other system. The White plurality took a more expansive view Furthermore, the requirement of any jury guide- of the standards set forth in Furman in determining lines squarely repudiated the holding of McGautha n° what would be a constitutional sentencing statute. v. California, according to the White plurality."' The unfettered discretion which the jury enjoyed This charge was raised by the dissenters in Furman in pre-Furmanstatutes was viewed as a major factor and because it went unanswered by the concurring leading to the invalidation of such statutes, and Justices in that case the White plurality again the White plurality considered the removal of such raised the issue. discretion as the key to upholding a post-Furman In finding that the guided-jury discretion stat- statutory plan. 0 7 Therefore, since mandatory sen- utes were constitutionally permissible, the Stewart tences for a narrowly redefined classification of plurality in Gregg began by establishing the limited first-degree murder eliminated all jury discretion nature of its review on the eighth amendment in imposing the sentence, the White plurality question: would have refused to deny the states this option which the Justices viewed as compatible with the We may not require the legislature to select the least severe penalty possible so long as the penalty selected Furmanstandards.'O" Accusing the Stewart plurality is not cruelly inhumane or disproportionate to the 104Gregg v. Georgia, 428 U.S. at 227 (Brennan, J., crime involved.... dissenting), 231 (Marshall, J., dissenting). .... The deference we owe to the decisions of the i5justice Marshall cited Sarat & Vidmar, Public Opin- state legislatures ... is enhanced where the specifi- ion, The Death Penalty, and the Eighth Amendment: Testing the cation of punishments is concerned, for "these2 are Marshall Hypothesis, 1976 Wis. L. REV. 171, as support peculiarly questions of legislative policy.""11 for adhering to his Furman position. 428 U.S. at 232. 10 Because the White plurality would have sustained The Stewart plurality then interpreted Furman as mandatory sentencing, the other two votes needed to comprise a majority for the Court to reject mandatory holding that capital punishment "could not be sentencing came from Justices Marshall and Brennan, imposed under sentencing procedures that created who adhered to their moral positions announced in Fur- a substantial risk that it [capital punishment] man. 428 U.S. at 305 (Brennan, J., concurring), 306 would be inflicted in an arbitrary and capricious (Marshall, J., concurring). The Stewart plurality, being manner."'" In support of this reading of Furman, the most narrow opinion upholding capital punishment, is the controlling opinion throughout these cases. Only Justice Stewart quoted Justice White's opinion in the Stewart plurality's views could ultimately obtain the Furman, as well as his own." 4 Emphasis, as indi- needed votes to form a majority of the Court. The Stewart plurality could count on the Justices in the more expan- '09Id. at 363. sive White plurality to join in upholding the procedural "o402 U.S. 183 (1971). aspects of a particular capital statute. However, when "' 428 U.S. at 347-48. Justice Rehnquist reemphas- invalidating a statutory scheme which the White plural- ized this point in his separate opinion in Woodson v. ity would uphold, the three Justice Stewart plurality North Carolina, 428 U.S. at 319 (Rehnquist, J., dissent- could anticipate the votes of Justices Brennan and Mar- ing). shall who had consistently voted against capital punish- "2 428 U.S. at 175-76 (quoting Gore v. United States, ment on moral grounds. 357 U.S. 386, 393 (.1958)). '07 Roberts v. Louisiana, 428 U.S. at 346 (White, J., ' Id. at 188. dissenting). "1 Id. (quoting 408 U.S. at 313 (White, J., concurring) 1o8Id. and id. at 309-10 (Stewart, J., concurring)). COMMENTS [Vol. 69

cated by these quotations, was therefore placed on attempt to distinguish the two holdings on the the capricious manner of imposing capital punish- difference between the eighth and fourteenth ment. While mention was given to other Furman amendments. This is especially so since the eighth concurrances in a footnote," 5 they were solely cited amendment only applies to the states through the for support of the White and Stewart statements, fourteenth amendment.12° and it appears that alternative rationales for Fur- By its holding, the Stewart plurality placed the man's results had been discounted. The Stewart emphasis of the constitutional analysis on reducing plurality concluded that the proper way to effec- the capriciousness and arbitrariness in the method tively combat the problems inherent in the pre- of capital sentencing, while placing no emphasis Furman statutes was to draft statutes that provide on who was being sentenced to death.'12 In other adequate information and guidance to the sentenc- words, the Stewart plurality was relying on the first 116 ing authority. The decision to extinguish a hu- 120See Robinson v. California, 370 U.S. 660 (1962). man life may be made only when all relevant 121 It is interesting to note that at almost the same time information regarding the criminal act and the Gregg was decided, totally ignoring the issue of racial and criminal, including both aggravating and mitigat- economic discrimination, a study was reported which ing circumstances, is presented to the sentencing concluded that both the mandatory sentencing alterna- tive and the guided-jury discretion model were unconsti- authority, thereby reducing the opportunity for tutional because both discriminated on racial grounds. capricious and arbitrary sentencing. An expedited Reidel, Discrimination in the Imposition of the Death Penalty: judicial review procedure designed to corroborate A Comparison of the Characteristicsof Offenders Sentenced Pre- the sentencing authority's determination of capital Furman and Post-Furman. 49 TEMPLE L.Q. 261 (1976). Dr. sentences further ensures the integrity of the overall Reidel is project director at the University of Pennsyl- vania's Center for Studies in Criminology and Criminal sentencing procedure. Therefore, the Stewart plu- Law. rality held that under such a procedural system The 1976 study of both mandatory and guided-jury designed to take all relevant facts into considera- discretion forms of capital statutes was conducted by tion and to have the verdict scrutinized by prompt Reidel to determine if the post-Furman statutes alleviated judicial review, the sanction of death could be the problems inherent in the unconstitutional pre-Furman 7 statutes characterized by unguided jury discretion. Rei- constitutionally imposed." del's study focused on the indicia of standardless and The Stewart plurality attempted to answer the arbitrary discretion in capital punishment sentencing: White plurality's reference to McGautha v. Califor- racial and social discrimination. The premise of his in- nia"8 by distinguishing it. As discussed previously, quiry was that if either mandatory sentencing or guided- jury discretion sentencing failed to eliminate or alleviate McGautha held that a lack of jury standards to the perceived problems of the standardless discretion guide their discretion did not violate the due proc- statutes, (i.e. racial discrimination) then the statutory ess clause of the fourteenth amendment. The Stew- alternatives would also have to be found violative of the art plurality noted that McGautha was a fourteenth eighth and fourteenth amendments. Reidel, therefore, amendment case, not an eighth amendment case equated the constitutionality of the post-Furman statutes with a reduction of the proportion of non-white defend- as was Gregg and its companions. Therefore, in ants sentenced to death. view of Furman's precedent for the eighth amend- The results of his study indicated that not only did the ment that total jury discretion to impose or with- post-Furman statutes fail to reduce the proportion of non- hold death as a penalty violates the cruel and whites sentenced to death, but that this proportion ac- tually increased. Id. at 275. Reidel also found that unusual clause, McGautha can only be read as a there was no statistical difference between the two alternative precedent "for the proposition that standardless methods of sentencing. Id at 282-83. From this he con- jury sentencing procedures were not employed in cluded that both types of statutes were constitutionally the cases then before the Court so as to violate the impermissible. Id. Due Process Clause."' 9 This distinction does not Reidel's study can be criticized for basing his conclu- sion of the statutes' unconstitutionality on only one of the seem persuasive in light of the past history of three underlying rationales of Furman. Only Justices capital punishment. The Court should have rec- Douglas and Marshall fully accepted the racial discrim- ognized it was explicitly overruling McGautha on ination rationale. Yet at the time the study was con- the issue of jury standards, rather than weakly ducted, in the post-Furman-pre-Greggperiod, it certainly could have been argued that a clear showing of racial ' 6 Id. at 188 n.36. discrimination would condemn any system of sentencing. 1 Id. at 195. Query: had Reidel's study been published a few months 117 Id. at 207. earlier so the Court could have had time to digest the "a402 U.S. 183 (1971). conclusion, would the racial discrimination rationale of "1 428 U.S. at 196-97 n.47. Furman have been completely ignored? 19781 CAPITAl PUNISIIMEN7

rationale of Furman discussed earlier."' Indeed, mandatory sentencing statute.s this cannot be ac- there was no recital in any of the five Gregg cases of complished. Anyone convicted tinder a mandatory the petitioners' characteristics.i2: In Justice l)oug- capital punishment statute must be sentenced to las' Furman concurrence however, he took pains to death, regardless of any mitigating circutnstances. give a detailed background report of each of the Therefore, death under these circumstances is con- petitioners12 4 in order to demonstrate their low trary to the evolving standards of decency, is dis- social standing and thus emphasize his rationale proportionate and is excessive. According to the for invalidating their death sentences. The shift in Stewart plurality, this would violate the eighth emphasis from who to how considerably changes the amendment's proscription against cruel and unt- outcome of the constitutional analysis. Under the sual punishment. 127 Stewart plurality's analysis, the guided-jury discre- POIST-GRF,(x; D I-.;V-.01IMFNT.S tion statutes completely removed the arbitrary and capricious method of sentencing and are therefore Reaffirming the dichotomy between the guided- constitutional. Whereas, according to the Reidel jury discretion statutes and the mandatory sent- study, these same statutes, when applied, result in encing plans announced in the Gregg cases, the the same type of racial discrimination Justices Court struck down Louisiana's mandatory death Douglas and Marshall attacked in Furman. statute for killing a police officer performing his The Stewart plurality rejected the mandatory dtuties in Harry Roberts v. Louisiana." The element sentencing statutes in Woodson and RoberL because which distinguished this Louisiana case from the such alternatives, although eliminating the type of previous disposition of Louisiana's mandatory stat- jury discretion found inherent in the pre-Furman tite for murdert'2 was the fact that the victim in statutes, still had two related flaws. First was the Harry RoberLr was a policeman killed in the course problem ofthejury being unable to take mitigating of his duties.':1° This element brought the statute circumstances into account, which led to the second involved' :" closer to the statute found constitu- problem of jury nullification. Under the manda- tional inJurek v. Texas,':' which the Cotirt upheld. tory systems there is no way to differentiate be- tween those convicted of the same offense. The '2'.428 U.S. at 336. tnguided jury is impermissible according to Fur- '2 97 S. Ct. 1993 (1977). "25See Roberts v. Louisiana, 428 U.S. 325 (1976). where man, but, after Gregg, so is the jury left without any tie Court struck down mandatory death penalties for discretion at all. The Stewart plurality pointed to r s those convicted under other portions of the same statute, ajury study by Kalven and Zeisel ' for the prop- l.A. R-v. STAT. ANN. § 14:30. osition that death is viewed as an inappropriate t30 The Court reserved the right to decide tile consti- sanction for many of those convicted even of first tutionality of a mandatory sentence of death for the 2 in the course of his duties bv a degree murder.' ' The punishment must be made murder of a police officer convict already serving a life sentence. 97 S. Ct. at 1996 to fit the crime and the criminal, yet under the n.:).

' See text accompanying notes 46-50 su/ira. This ex- ' LA. RE.. S-I'AT. ANN. § 14:30 (1974): plains the failure of the Reidel study to accurately fore- F'irst degree murder. First degree murder is the killing east the Court's decisions regarding the post-Fumian stat- of a human being: ities even though both the Court and Reidel's study used standardless and arbitrary discretion in imposing the (2) When the offender lha a specific intent to kill, death penalty as their measure of alt unconstitutional or to inflict great bodily harnu upon, a firemuan. or sentencing statute. Reidel's study focused on whom was a peace officer who was engaged in the performance sentenced to death, while the Stewart plurality was look- of his lawful duti.s .... ing at how they were sentenced. " Although one may reasonably suggest that from the Whoever commits the cririe of first degree murder particular facts, the petitioners in Gregg, Proffitt, 111ooduon shall be punished by death. ':" 428 U.S. 262. Ti.x. PENA. Coim. ANN. § 19.02(a) and RoberLv were poor. i24 408 U.S. at 252 -53 ()ouglas, J., concurring). Fur- (Vernon 1974): man was decided with Jackson v. Georgia and Branch r. A person counits all offense if lie: 7exas. (1) intentionally or knowitigly calls(-- the death of i 2' f. KAI.VIiN & If. ZE'IAI., Tinl; AmMIoCI:AN JURY an individual; (1966), cited at 428 U.S. at 295. (2) intends to cause serious body injury and coni- 125In further answering the White plurality'. attack, mits an act clearly dangerous to huiian life that the Stewart plurality noted that tinder the discretionary causes the death of ati individual: or •systems, death was imposed less than 20% of the timie for (3) commiits or attempts to conunit a felony, other first degree murder. 428 U.S. at 295 n.31. than voulutary or involuntary matnslaughter, aid COMMENTS [Vol. 69

Although no aggravating circumstance was to be be the fatal flaw of 1the mandatory sentencing independantly considered under the Texas statute, system in Harry Roberts. 35 the Stewart plurality concluded that the narrowly Assuming, then, that the Stewart plurality's po- defined classification of murder for which death sition of a guided-jury discretion system with ade- was a penalty served the same purpose as a statu- quate appellate review is the formula to a consti- tory aggravating circumstance. Both served to tutional death penalty, 36 Gregg and its companion guide and channel the jury while eliminating ar- cases still left important questions open. The Stew- bitrary discretion in the sentencing procedures.13 art plurality in Gregg carefully noted that the anal- Therefore, under the Louisiana statute and the ysis it applied to determine the per se constitution- particular factual setting presented in Harry Roberts, ality of capital punishment applied only to the it was determined that an aggravating circum- death penalty as a sanction for the crime of mur- stance, the murder of a police officer in the per- der. 37 What other crimes then would death be an formance of his duties, was properly found by the acceptable penalty for, and by what standards jury. The failure of the Louisiana statute, however, would those crimes, if any, be selected? A related to allow the jury to consider any mitigating circum- question is whether the "list" of capital crimes stances, unlike the Texas statute, 34 was found to would vary from time to time, or whether once established, it would be somehow locked into or in the course of and in furtherance of the commis- attached to the eighth amendment itself? sion or attempt, he commits or attempts to commit 3 an act clearly dangerous to human life that causes The case of Coker v. Georgia 8 began to answer the death of an individual. these questions. Since Coker originated from Geor- Texas law defines as a capital offense the commission of gia, the procedural question of Georgia's capital murder defined in § 19.02 (a) (1)if: punishment statutes had been authoritatively ap- (1) the person murders a peace officer or fireman proved in Gregg. The issue, therefore, was whether who is acting in the lawful discharge of an official duty and who the person knows was a peace officer those procedures could be employed when the or fireman: defendant was convicted of rape instead of murder. (2) the person intentionally commits the murder in The victim in Coker was robbed, raped and kid- the course of committing or attempting to commit napped. The Court was faced for the first time kidnapping, burglary, robbery, aggravated rape or with a sentence of death imposed for a crime where arson: (3) the person commits the murder for remunera- the victim was not killed. To put it another way, tion or the promise of remuneration or employs the Court would be confronted with a case where, another to commit the murder for remuneration or if the sentence were carried out, the only person to the promise of remuneration; lose his life would be the defendant. The Court (4) the person commits the murder while escaping held that the penalty of death for the crime of rape or attempting to escape from a penal institution; 3 9 (5) the person, while incarcerated in a penal insti- was always violative of the eighth amendment. tution, murders another who is employed in the Once again, however, the Court could not agree operation of the penal institution. "' 428 U.S. at 270. on a majority opinion, even though seven Justices 134 Under Texas law, the jury must answer three post- did concur in the result. Justice White announced conviction questions affirmatively before the death sen- the opinion of the Court, joined by Justices Stew- tence can be imposed. The questions thejury must answer art, Blackmun and Stevens. 140 Justices Brennan affirmatively are these: and Marshall concurred in the result, but again (1) whether the conduct of the defendant that only on their previously announced grounds con- caused the death of the deceased was committed deliberately and with the reasonable expectation demning all forms of capital punishment.'' Justice that the death of the deceased or another would Powell concurred in the result reached in this result; particular case, but refused to join what he felt to (2) whether there is a probability that the defend- be the Court's overinclusive holding. 142 Only Chief ant would commit criminal acts of violence that would constitute a continuing threat to society; and '3 97 S. Ct. at 1996. (3) if raised by the evidence, whether the conduct 136 There is no reason to assume otherwise, since such of the defendant in killing the deceased was unrea- a plan will continue to have the support of at least seven sonable in response to the provocation, if any, by of the Justices as the Court is currently composed. the deceased. 137Gregg v. Georgia, 428 U.S. at 187 n.35. Ti-EXAS CODrE CRIM. PROC. ANN., art. 37.01 (b) (Vernon '38 97 S. Ct. 2861 (1977). 3 Supp. 1975-76). Texas courts interpreted the second ' 9 Id. at 2869. question so as to allow the defendant to bring to the '40Id. at 2863. jury's attention whatever mitigating circumstances he 141Id. at 2870 (Brennan, J., concurring); id. (Marshall, might be able to show. State v. Jurek, 522 S.W.2d 939-40 J., 1concurring).42 (Tex. Crim. 1975). Id. (Powell, J., concurring in part, dissenting in 1978] CAPITAL PUNISHMENT justice Burger and Justice Rehnquist dissented. 3 As it did in Gregg, the Court further looked to The Court followed the same eighth amendment the response ofjuries to the cipital statutes. With- analysis the Gregg pluralities used in determining out providing citations to back up its statistics, the the per se constitutionality of capital punishment Court stated "that in the vast majority of cases, at for murder. Reiterating that an eighth amendment least 9 out of ten, juries [in Georgia] have not ' cruel and unusual attack will succeed if the pun- imposed the death sentence [for rape]. i"t This also ishment is found "excessive," the Court once again indicated to the Court that death was an excessive set out the tests of excessiveness as being (1) the penalty for the crime of rape. "purposeless and needless imposition of pain and. While neither the response of the legislatures nor suffering, or (2) ... [if the punishment was] grossly of the juries could foreclose the Court from making 5 1 out of proportion to the severity of the crime. ' 44 a contrary finding, the Court agreed with those The Court then examined the same objective in- indicators and concluded that capital punishment dicia as it did in Gregg to decide whether death for for rape, which by definition does not involve the the crime of rape was excessive. Looking first at the death of the victim, is disproportionate as a pen- legislative response to Furman, the Court noted that alty. Therefore, such a penalty is excessive and, as 52 of the sixteen states that had death as a penalty for a result, violative of the eighth amendment. the crime of rape in 1972, only Georgia had re- Under the plurality's analysis, once a determi- tained that penalty for rape of an adult woman in nation is made that the death penalty is an uncon- 1977 .'4 The Court recognized that three other stitutional penalty for a particular crime, all states are precluded from enacting that penalty for that' states, Tennessee, Mississippi and Florida, had en-46 acted death for the rape of a child by an adult. offense. This all-or-nothing analysis allows the Further evidence of the legislative response to Fur- scope of permissible capital punishment offenses to man was the fact that while eleven of the sixteen shrink, but virtually eliminates expansion of the" states which initially had capital punishment for death penalty to other crimes, because a challenge rape in their pre-Funman statutes did re-enact death to a capital statute enacted in only a few states will as a penalty,147 only Georgia, Mississippi and Flor- call for the same result as in Coker. ida had arguably constitutional statutes on their A conceptual decision-making framework of the books by 1977. Examining legislative actions on eighth amendment appears to have evolved from the penalty for rape in foreign countries, the Court the Gregg and Coker cases. The cruel and unusual also considered the fact that out of sixty major language of the Constitution has been reformu- nations surveyed in 1965 only three retiined capi- lated into two standards which the Court is sup- tal punishment in rape cases where the victim was posed to answer by examining objective indidia. not killed.'4 Although not conclusive evidence, the 'The eighth amendment standard of Trop, then legislative response was viewed by the Court as articulated merely as the 'dignity of man," has strongly indicating that death was an excessive been redefined in terms of whether the penalty is "excessive."3 The standards for excessiveness as penalty, being contrary to contemporary standards9 and disproportionate to the crime of rape. set forth in Coker are, if the punishment "(1) makes no measurable contribution to acceptable goals of part). Justice Powell would have reserved the question of whether capital punishment is always violative of the punishment and hence is nothing more than the eighth amendment for rape by confining the holding in purposeless and needless imposition of pain and Coker to say that death was an impermissible penalty for suffering; or (2) is grossly out of proportion to the rape of an adult woman where there is no indication of severity of the crime. ' " These standards are to be or serious or lasting injury. He posited excessive brutality evaluated by such factors as history, precedent, • the case of an aggravated rape where the victim was so seriously injured physically or psychologically that "life legislative responses, jury responses and public at- is beyond repair." Id at 2871 (emphasis in original). titudes regarding the particular punishment for the Under such a situation, Justice Powell might be willing particular offense.iss The intended purpose of this to permit the rapist to be executed. 44 CJ., dissenting). 0 Id at 2872 (Burger, 5 Id. at 2868. 'Id at 2865. 151The Court stated that the Constitution required the '45Id at 2867. 146The Tennessee statute had been declared unconsti- Court to be the final decision-maker regarding whether tutional prior to Coker. a penalty'would be acceptable under the eighth amend- 147Id at 2867. ment. Id. at 2868. '48 Id at 2868 n. 10 (citing DEP'r OF EcONOMIC AND 152Id. at 2869. SOCIAL AFFAIRS, UNITED NATIONS, CAPITAL PUNISH- : Gregg v. Georgia, 428 U.S. 173. MENT 40,86 (1968)). '"97 S. Ct. at 2865. 149 Id at 2867-68. "5 Id. at 2866. COMMENTS [Vol. 69

conceptual framework is to remove the subjective be authoritatively deduced from the objective in- (i.e., moral) views of the individual Justices from dicia the Court examines. It is difficult to see how the eighth amendment determination."5 6 a legislature's decision to authorize capital punish- Examining the second half of the excessiveness ment, or ajury's willingness to impose that penalty, test, one result of the standards outlined above has answers the question of whether a contribution is been that considerable emphasis is placed upon being made to acceptable goals of punishment. decisions of legislatures and juries. In upholding Justification for capital punishment in terms of capital punishment in Gregg, both pluralities relied acceptable goals is expressed in terms of deterrence heavily on the legislative response to Furman. Like- and retribution, and it is in evaluating whether wise, in rejecting capital punishment in Coker, the these goals are legitimately furthered that the in- plurality there also gave great weight to the legis- dividual views of the Justices come to the forefront. lative action regarding the proper penalty for Justice Brennan has concluded that these goals are 157 rape. never served by capital punishment. In fact, Bren- Similarly, weight was given by the Court to jury nan disavows the goal of retribution as even a verdicts. In Gregg, the large number ofjuries which legitimate goal of the criminal justice system. No sentenced defendants to death supported the leg- showing of objective indicia has persuaded him islative response and led the Court to conclude that legitimate goals of punishment are being capital punishment was not excessive. In Coker, the served. failure of juries to sentence a large number of The rest of the Court has attempted to keep their defendants to death for committing rape, was personal views out of the judicial reasoning, but viewed by the Court as an important factor in only with varying degrees of success. Justice Mar- rejecting capital punishment for that crime. shall allowed his own views to influence his vote Thus, in answer to whether a capital penalty is when he was faced in Gregg with overwhelming or is not grossly out of proportion to the severity of legislative support of capital punishment for mur- the crime, the objective indicia used by the Court der. He adhered to his Furman position that if the do remove the subjective views of the individual people really knew all the facts they would be Justices from the constitutional equation. How- opposed to capital punishment. 59 ever, the current eighth amendment inquiry does In Gregg and Coker all of the plurality opinions not end with a counting of legislatures and juries. decided whether death could be imposed by ex- The remaining standard-the penalty of death amining the legislative response, thus apparently - "makes no measurable contribution to acceptable leaving subjective factors out of the inquiry. But in goals of punishment and hence is nothing more both cases, the plurality opinions indicated that than the purposeless and needless imposition of the legislative responses were not fully controlling. pain and suffering"l 5 -must also be met. It is in In Coker, the Court compared the "moral deprav- this test that the preferences of the individual ity" of rape with that of murder. Because rape, by Justices may be most prevalent. The standard is definition, does not involve the taking of a life, the phrased in terms such as "measurable contribu- Court concluded that rape does not equal the tion," "acceptable goals" and "purposeless and moral depravity of murder.'" As a result, rape did needless imposition of pain" so that answers cannot not fit into the category of the most extreme crimes

" Id. at 2865-66. and, therefore, the penalty of death was found to '5- Further support for the proposition that looking to be excessive. legislative decisions isthe proper indicia of eighth amend- The conclusion that rape does not fit into the ment standards can be found in eighth amendment cases category of the most extreme offenses must be outside of the criminal justice system. In Estelle v. Gam- based, to some extent, on moral attitudes of the ble, 429 U.S. 97 (1976), the Court assessed a prisoner's Justices. There are no clear objectives delineating eighth amendment claim to receive adequate medical what should be included in a category described treatment in Texas by examining the contemporary stan- dards regarding treatment of prisoners. To make the only as the "most extreme crimes." The Chief needed determination of what those standards were, the Justice and Justice Rehnquist, in dissenting from Court looked to legislation in 22 states calling for pris- Coker,'61 attacked the plurality's opinion because of oners to be medically cared for by the public since, being its moralistic assumptions. The dissenters, focusing deprived of their liberty, they are unable to care for themselves. Id. at 103-04. The Court took these legislative '59Gregg v. Georgia, 428 U.S. at 232 (Marshall, J., statements as evidence of contemporary standards that dissenting). such medical care must be provided. Id. 16097 S. Ct. at 2869. 161Id. at 2872 (Burger, C.J., dissenting). '58 Coker v. Georgia, 97 S. Ct. at 2865. 19781 CAPITAL PUNISHMENT

on the particular petitioner before the Court, 62 terrorist who did not take a human life, just as it would not keep the State from imposing the death was for the rapist. penalty for rape where aggravating circumstances This result totally removes any consideration of warranted the penalty. objective indicia from the constitutional equation. From the cases decided by the Court since Fur- The personal, moralistic views of theJustices would man, two principles seem to have been articulated have governed the disposition of the constitutional in determining whether a penalty is excessive. First, question, the very result the standards enunciated the Court will give great weight to the collective in Gregg and Coker were designed to eliminate. At judgment of the state legislatures, and second, that point, the Court comes close to Justice Bren- capital punishment is a penalty which may be nan's position first articulated in Furman that cap- imposed only when the life of the victim has been ital punishment is invalid based on his interpreta- taken by the defendant. So far, no conflict between tion of "moral concepts" consistent with the dignity these two principles has arisen because only the of man. The only difference between the positions crime of murder commands the support of a ma- of Justices Brennan, Marshall and the Coker plu- jority of the legislatures. But if these two principles rality is where the line of constitutionality is drawn. are an accurate reading of the Court, then a con- For Brennan and Marshall, all capital punishment flict would arise should a large number of states is "cruel and unusual." The Coker plurality would enact capital punishment for a crime which did allow the ultimate penalty of death to be applied not involve the death of its victim, such as mass for the crime of murder, but for no other offense. t 64 terrorism 16 or skyjacking.' Assuming that juries Because of the imprecise language of the eighth would impose the death penalty for an aggravated amendment it is possible that its authors intended case of terrorism, the Court would be squarely cruel and unusual punishments to be judged by a faced with the conflict between objective indicia standard which reflects the changing mores of and moralistic conviction. Based upon Coker, it society. If so, then the Court's analysis should be would appear that the Court would reject capital limited to discovering current societal mores and punishment in such a situation, because death not inject their own views. The test under such .art would be considered an excessive penalty for the interpretation would approximate the analysis the Court undertakes when it examines only the objec- 162 The petitioner in Coker had a long and dangerous tive indicia of contemporary values-legislative ac- record. The petitioner was already serving substantial tion and jury decisions. This type of standard prison sentences for two previous rapes when he escaped would allow some flexibility in determining current from prison and committed the rape offense which the societal values, yet would not allow the Court to Court was reviewing. reject a clear preference for the death penalty for '63 The following analysis depends on a factual setting in which a substantial number of states have enacted any particular crime. The pure objective test would capital punishment for a crime such as skyjacking before also allow the scope of permissible capital punish- the first case can be brought before the Supreme Court. ment to vary from time to time in accordance with If only a few states enact such a penalty, and the Court contemporary values. Under the current standard entertains a capital case under such a statute, the Court the constitutionality of capital pun- would likely strike it down based upon the Coker holding of determining that there is no objective indicia of societal support for ishment, such flexibility has apparently been re- the death penalty for that offense. The Court would thus moved, regardless of societal values. conclude that the death penalty was contrary to contem- porary standards. The textual analysis depends upon a CONCLUSION record which presents the Court with a true conflict between majority legislative support and the principle Perhaps, in the final analysis, the resolution" of that capital punishment should be reserved for murder. whether there is to be capital punishment will Under the Court's all-or-nothing analysis in Coker, a inevitably be governed by subjective considera- finding that death is inappropriate for skyjacking effec- tions. Legislators will initially make that judgment tively would preclude all states from legislating capital in approving the penalty, jurors will make that punishment for that crime. See 97 S. Ct. at 2870 (Powell, J., concurring in part, dissenting in part). decision in imposing the penalty, and judges will 164Congress enacted in 1974 a capital punishment make that decision in approving the penalty. The statute for skyjacking. 49 U.S.C. § 1472 (i) (1974) pro- Court has tried to establish tests which eliminate vides, "(1) Whoever commits or attempts to commit these subjective considerations from their review, aircraft piracy, as herein defined, shall be punished- those considerations to be made elsewhere. ... (B) if the death of another person results from the leaving commission or attempted commission of the offense, by The tests, however, have only been successful to a death or by imprisonment for life." limited extent. COMMENTS [Vol. 69

The history of capital punishment in America these two principles ever come into conflict, the has passed through periods of unarticulated ac- latter would prevail. Thus, for all practical pur- ceptance in the nineteenth century to nearly total poses, the standard of constitutionality really de- repudiation in the Furman case to a limited accept- pends upon the subjective values of a majority of ance which is evidenced by the post-Furman deci- the Court. The point where the constitutional line sions. The category of offenses for which the death is to be drawn varies among some of the Justices, penalty can constitutionally be imposed has been but it is clear from the most recent Supreme Court limited to the crime of murder. The standards by cases that wherever the line is drawn, it will be, in which the penalty is measured are a combination the end, the result of the subjective views of the of objective indicia and subjective conclusions. The individual Justices. Court's analysis, however, indicates that should STEWART W. KARGE