THURGOOD MARSHALL
LAW REVIEW
VOLUME
17
FALL
1991
NUMBER
1
CAPITAL SENTENCING EVIDENCE AFTER
PENRY AND PAYNE
BY
DANIEL
I.
H.
BENSON*
INTRODUCTION
In Penry v. Lynaugh 1 the Supreme Court of the United States
reversed in part and remanded a Texas capital case in which the jury
"was not provided with a vehicle for expressing its 'reasoned moral
response' to [mitigating evidence introduced by the defendant] ... in
rendering its sentencing decision."2 In 1982 I had predicted this result3
on the basis of the Court's decisions in Eddings v. Oklahomcr and
Lockett v. Ohio,S when considered in light of the obvious defects in
the Texas capital sentencing scheme preventing the jury from making
a meaningful response to mitigating evidence falling outside the scope
of Texas' I narrowly limited special issues on punishment. 6 Other
* Professor of Law, Texas Tech University; B.A., University of Texas at Austin, 1958;
J.D., University of Texas at Austin, 1961; M.A., Texas Tech University, 1974.
1. 492 U.S. 302 (1989).
2. 492 U.S. at 328 (1989).
3. Benson, Texas Capital Sentencing Procedure After Eddings:Some Questions Regarding
Constitutional Validity, 23 So. Tex. L. J. 315, 331 (1982).
4. 455 U.S. 104 (1982).
5. 438 U.S. 586 (1978).
6. When the Penry case was tried, Texas law provided for the submission of three
special issues to the sentencing jury: (1) whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with the reasonable expectation that the
death of the deceased or another would result; (2) whether there is a probability that the
defendant would commit criminal acts of violence that would constitute a continuing threat
to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing
the deceased was unreasonable in response to the provocation, if any, by the deceased. Tex.
Code Crim. Proc. Ann. art. 37.071(b) (Vernon 1981) (amended 1991). Jurors were required
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commentators had raised this or closely related issues concerning the
constitutional inadequacy of the Texas scheme.7 Indeed, the Court of
Appeals, in its decision in Penry, 8 duly noted some of our scholarly
qualms, 9 and clearly understood the problem, stating it in a very
compelling manner, 10 but denied relief "because prior Fifth Circuit
decisions have rejected claims similar to Penry's."ll So much for the
interaction of the legal academic community and the courts; in this
instance our proffered scholarship was apparently of little value. 12
In response to Penry, the Texas capital sentencing scheme has been
revised,13 but significant problems remain, so that some further "critical
academic analysis"14 seems justified. Seen in 'perspective, the problems
are not confined to the Texas sentencing system, but are present in
the sentencing schemes of all states still using the death penalty, so
that the issues addressed by the Supreme Court in Penry have
ramifications beyond the single jurisdiction involved in that case.
to return answers of "yes" or "no" as to each issue submitted, or to report their inability to
agree on one or more issues. Unanimous answers of "yes" on each issue submitted resulted
in the death sentence being pronounced by the trial judge; answers of "no" or inability to
agree on the answer to one or more issues resulted in imposition of a life sentence by the
judge. Tex. Code Crim. Proc. Ann. art 37.071(a) (Vernon 1981) (amended 1991). The defendant
was allowed to present evidence "as to any matter that the ~ourt deems relevant to sentence,"
Tex. Code Crim. Proc. Ann. art. 37.071(a) (Vernon 1981) (limended 1991), but if the evidence
presented did not come within one or more of the three special issues, the jury had no way
to respond to it under the system in effect at the time of Penry.
7. E.g., Green, Capital Punishment, Psychiatric Experts and Predictions ofDangerousness,
13 Capital U. L. Rev. 533, 553 (1984); Dix, Constitutional Validity of the Texas Capital
Murder Scheme: A Continuing Question, 43 Tex. B. J. 627, 630, 633 (1980); Black, Due
Process for Death: Jurek v. Texas and Companion Cases, 26 Cath. U. L. Rev. 1 (1976).
8. 832 F.2d 915 (5th Cir. 1987), afFd in part and rev'd in part, 492 U.S. 302 (1989).
9. 832 F.2d at 924 n. 5.
10. 832 F.2d at 925-26.
11. 832 F.2d at 926.
12. Former Chief Judge John R. Brown of the Court of Appeals for the Fifth Circuit
has argued that the proper role of law professors in our legal system is to provide "critical
academic analysis in an objective nonpartisan way." John R. Brown, Is the Corpus (Juris)
Terminally Ill?, 12 Tex. Tech L. Rev. 13, 20 (1981). Judge Brown asserted that "it is a
disruptive confusion of roles for law professors to participate actively as counsel in actual
cases, trial or appellate." Id. at 19. Perhaps so, but to date my participation as appellate
defense counsel in capital case litigation has been more effective than my "critical academic
analysis." See e.g., Warren v. State, 562 S.W.2d 474 (Tex.' Crim. App. 1978); United States
v. Wimberley, CM 409,334 (Army B.R. Feb. 25, 1965), afjd. 16 C.M.A. 3 (1966). Even as
counsel for the United States, in at least one case I have been successful in urging that death
sentences be set aside, where that was clearly appropriate. See Frady v. United States, 348
F.2d 84 (D.C. Cir. 1965). I regard Judge Brown's admonitions to law professors to stay out
of the courts as interesting rhetoric but bad advice, at least in my own case. I realize that this
may indicate something about whether I am presently in the, right branch of the profession, a
point on which my faculty colleagues and law students might like to be heard.
13. The new sentencing scheme is set forth in Tex. Cqde Crim. Proc. Ann. art. 37.071
(Vernon 1991), and will be discussed in the course of this article.
14. Brown, supra note 12, at 20.
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CAPITAL SENTENCING
1991]
3
The problem common to Lockett. ls Eddings l6 and Penryl7 was the
matter of how to insure that the sentencing agent. whether judge or
jury. would be able to consider and respond meaningfully to evidence
of any mitigating circumstances tendered by the defendant. when
limitations in the various statutory schemes precluded such
consideration and response. In Payne v. Tennessee. ls decided June 27.
1991. the problem confronting the Court arose from sentencing evidence
introduced by the prosection: victim impact testimony. The Court had
decided in Booth v. Maryland l9 that the Eighth Amendment bars the
admission of victim impact evidence during the punishment phase of
a capital case. and had expanded that holding to include prohibition
of improper argument by the prosecutor regarding religious and
personal qualities of a murder victim in South Carolina v. Gathers. 20
In Payne the Court concluded that both Booth and Gathers were
wrongly decided. overruled them. and held that "if the State chooses
to permit the admission of victim impact evidence and prosecutorial
argument on that subject, the Eighth Amendment erects no per se
bar."21
Payne. like Penry, involved issues that have ramifications beyond
the single jurisdiction involved in the case. Under Payne, the
prosecution can apparently now bring before the sentencing judge or
jury a virtually unlimited array of evidence pertaining to the victim
of a homicide, the victim's family and the impact the homicide has
had upon them. and perhaps even the impact of the homicide upon
the community at large or groups within the community (church, civic
club, lodge. and like organizations). To be sure. the Court indicated
in Payne that such evidence must be relevant, observing that "there
is no reason to treat such evidence differently than other relevant
evidence is treated."22 But there are no guidelines. no standards, to
define and set the limits of victim impact evidence.
The Court's capital case jurisprudence now permits a defendant
to introduce relevant mitigating evidence beyond the scope of a state's
statutory scheme for structuring the punishment decision. and requires
that the sentencing judge or jury be capable of making a meaningful
response to that kind of mitigating evidence. From the prosecution
15.
16.
17.
18.
19.
20.
21.
22.
438 u.s. 586 (1978).
455 u.s. 104 (1982).
492 u.s. 302 (1989).
111 S.Ct. 2597 (1991).
482 u.s. 496 (1987).
490 u.s. 805 (1989).
111 S.Ct. at 2609.
ld.
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side, the Court's capital case jurisprudence now permits the
introduction of relevant victim impact evidence and argument based
on such evidence. Presumably rebuttal evidence can be presented by
the prosecution in response to mitigating evidence, and by the defendant
in response to victim impact evidence.
In his dissent in Penry,23 Justice Antonin Scalia complained that:
The Court today demands [that the Texas scheme] ... be replaced
. .. with a scheme that simply dumps before the jury all
sympathetic factors bearing upon the defendant's background and
character, and the circumstances of the offense, so that the jury
may decide without further guidance whether he "lacked the moral
culpability to be sentenced to death," ... "did not deserve to be
sentenced to death," . . . or "was not sufficiently
culpable to
I
deserve the death penalty". . . . The Court seeks to dignify this
by calling it a process that calls for a "reasoned moral response,"
. . . but reason has nothing to do with it, the Court having
eliminated the structure that required reason. It is an unguided,
emotional "moral response" that the Court demands be allowed
an outpouring of personal reaction to all the circumstances of a
defendant's life and personality, an unfocused sympathy.
Justice Scalia insisted that "the Court has come full circle, not only
permitting but requiring what Furman once condemned."24 Apparently
it would not trouble Justice Scalia if the Court's capital case
jurisprudence excluded some relevant mitigating evidence, but admitted
all relevant aggravating evidence. In his concurring opinion in Payne,
Justice Scalia repeated his belief that the admission of all relevant
mitigating evidence as required by Eddings'-5 and LockettU is wrong,
and even if the requirement should be abandoned he would still affirm
the judgment in Payne admitting victim impact evidence and
argument. 27
Justice Stevens, on the other hand, dissenting in Payne, rejected
the notion that since the defendant has a right to introduce all relevant
mitigating evidence, the prosecution should be allowed to respond with
similar evidence about the victim as a matter of faimess. 28 "This
argument is a classic non sequitur . .." insisted Justice Stevens, because
"[t]he victim is not on trial; her character, whether good or bad, cannot
23.
24.
25.
26.
27.
28.
492 u.s. at 359 (citations omitted).
Id. The reference is to Furman v. Georgia, 408 U.S. 238 (1972).
455 U.S. 104 (1982).
438 U.S. 586 (1978).
_
U.S. at _ , III S.Ct. at 2613.
_
U.S. at _ , 111 S.Ct. at 2627.
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CAPITAL SENTENCING
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therefore constitute either an aggravating or mitigating circumstance."29
Justice Stevens elaborated his point:
Even if introduction of evidence about the victim could be equated
with introduction of evidence about the defendant, the argument
would remain flawed in both its premise and its conclusion. The
conclusion that exclusion of victim impact evidence results in a
significantly imbalanced sentencing procedure is simply inaccurate.
Just as the defendant is entitled to introduce any relevant mitigating
evidence, so the State may rebut that evidence and may designate
any relevant conduct to be"an aggravating factor provided that the
factor is sufficiently well defined and consistently applied to cabin
the sentencer's discretion. 3o
Justice Stevens believes that the approach taken in Payne will, in some
cases, cause defendants to be "sentenced arbitrarily to death on the
basis of evidence that would not otherwise be admissible because it
is irrelevant to the defendants' moral culpability."3!
The present situation, then, is one in which some members of the
Court believe that too much mitigating evidence is being allowed from
the defendant,32 and other members of the Court believe that too much
aggravating evidence is being allowed from the prosecution. Suggestions
are made from both viewpOInts that the way is now open for the
imposition of death sentences "freakishly" and "wantonlY,"33 and as
the result of "wholly arbitrary and capricious action,"34 the very thing
condemned in Furman and its progeny.35
The present disorder in the Court's capital case jurisprudence on
sentencing raises the question of whether it is really possible to devise
and implement systems which provide guided discretion and avoid
arbitrary and capricious imposition of the death penalty. It may well
be that the decision of whether or not to execute another human being
is so fraught with deep-seated emotional, psychological, religious and
highly individual personal value judgments on the part of the sentencer,
whether judge or jury, that it is beyond the capacity of the legal system
to confme the discretion of the sentencer with lists of aggravating and
29.ld.
30.ld.
31. _
u.s. at _ , III S.Ct. at 2630.
32. 492 U.S. at 359.
33. Furman v. Georgia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring).
34. Gregg v. Georgia, 428 U.S. 153, 189 (1976).
35. See, e.g., the dissenting opinion of Justice Scalia, joined by Chief Justice Rehnquist,
Justice White and Justice Kennedy, in Penry v. Lynaugh, 492 U.,S. 302, 359 (1989), and the
dissenting opinion of Justice Stevens, joined by Justice Blackmun, in Payne v. Tennessee, _
U.S. _ , _ , 111 S.Ct. 2597, 2630 (1991).
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mitigating factors. The Court's capital case jurisprudence on sentencing
may be little more than an elaborate illusion which provides the
appearance of carefully guided discretion, but which actually delivers
the same kind of arbitrary and capricious infliction of the death penalty
that was denounced in Furman. It seems td me that this is the case.
I want to discuss that illusion, the reasons for it, and its characteristics,
rather than do the standard case analysis of the Court's capital
punishment jurisprudence. The kind of analysis I propose will tell us
more, in my view, about where we are and what we are doing with
capital punishment at this point in our national life, than legal analysis
of case law. In point of fact, the case law has very little to do with
what is actually taking place, and can evep. be misleading, since it
conveys the impression that the Court is continuing to develop a wellreasoned body of law in a consistent, organic manner.
II.
SHAM
QUANITIFICATION OF NONSCALAR QUALITATIVE DATA
It may prove helpful to provide some qackground regarding the
uses and misuses of quantitative data in sociology and other behavioral
sciences. What is happening in the Court's capital case jurisprudence
closely resembles misuse of quantitative data in the social sciences,
although the situation is not precisely the s~e. The similarities are
close enough, however, to justify a compatison.
In 1956 sociologist Pitirim A. Sorokin wrote a book entitled Fads
and Foibles in Modern Sociology and Related Sciences,36 in which he
discussed at some length a phenomenon he called quantophrenia. 37
Sorokin raised no objections to the appropriate use of mathematical
analysis and statistical techniques in social science; it was misuse that
he opposed:
So long as the method is genuinely mathematical and is applied
to those psychosocial facts which lend themselves to quantitative
analysis, it proves fruitful and deserves ever-increasing cultivation.
But when the true quantitative method is replaced by
pseudomathematical imitations; when the method is misused and
abused in various ways; when it is applied to phenomena which,
so far, do not lend themselves to quantification; and when it
consists in the manipulation of mathematical symbols in a vacuum
or in the mere transcription of mathematical formulae on paper
1
36. PITIRIM A. SOROKIN, FADS AND FOIBLES IN MODERN SOCIOLOGY AND
RELATED SCIENCES (1956).
37. Id. at 102-73.
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CAPITAL SENTENCING
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without tying them to the relevant psychosocial units-then the
approach misfires. Under these conditions, use of mathematical
method becomes a mere quantophrenic preoccupation having
nothing in common with mathematics and giving no cognition of
the psychosocial world. 38
Sorokin asserted that the "tidal wave" of misuse of mathematical
methods was "so high that the contemporary stage of the psychosocial
sciences can be properly called the age of quantophrenia and
numerology. "39
Elaborating, Sorokin explained that "[tlhis disease manifests itself
in many forms and in every region of sociology, psychology, psychiatry,
and anthropology. . . . "40 He described several elements of
quantophrenia in the social sciences. First, there are "[elver-increasing
numbers of quanto- or metrophrenic studies . . . published in the
journals.... "41 Similarly, books in the field "become increasingly
numerological and metromanic. "42 Researchers come to believe that
"quantitative research is the only truly scientific investigation of
psychosocial phenomena, and that all nonquantitative studies are either
merely 'arm chair philosophy,' or 'subjective speculation,' or at best
'an inexact, superficial and unverifiable literary exercise' . "43 Research
grants are increasingly available only for quantitative studies, and there
is "[al similar trend ... under way among journalists, reviewers, and
even ministers and the public at large."44 Sorokin concludes that
quantophrenia results in the social science disciplines becoming
"territories dominated by an occupational army of statisticians,
bookkeepers, accountants, numerologists, and metromanics. "45
In the larger context of his unhappiness with "the age of
quantophrenia," Sorokin complained specifically of sham
quantification of nonscalar data, observing that "one of the most
notable manifestations of metrophrenia is the increasing trend toward
unrestrained quantification of all qualitative data, no matter whether
or not they lend themselves to such an operation.' '46 It is here that
Sorokin gets close to what is happening in the capital punishment
jurisprudence of the Supreme Court, as I view the situation, and it
38.
39.
40.
41.
42.
43.
44.
45.
46.
ld.
ld.
ld.
ld.
ld.
ld.
ld.
ld.
ld.
at 103.
at 103-04.
at 104.
at 105.
at 122.
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is this aspect of his observations about misuse of mathematical
techniques that I want to compare with the Court's capital case
jurisprudence.
Sorokin notes that:
The passion for quantifying all sorts of qualitative data has
manifested itself in many fields: in measuring the intensities and
qualities of beliefs, emotions, intelligence, ideologies, attitudes and
public opinion; in the quantitative theories of "factor-analysis";
in the construction of "mathematical models"; and in exploring
general methods for correctly translating nonmetric qualities into
scalable ones.47
The point to see is that "if the quantified 9ualities have units, they
can be measured or scaled and the measurements expressed in
numbers," but the converse is also true: "If the scaled quantities do
not have units, they cannot be adequately ~caled and measured."48
Accordingly, Sorokin argues, "[i]f, in spite of this, the 'unitIess
qualities' are quantified, the resultant measurements are bound to be
fictitious rather than real, arbitrarily superimposed upon the
phenomena rather than giving objective measurements of them. "49
Sorokin's conclusion was that "[i]t is high time to cease these
pseudoscientific preoccupations.' 'so
Sorokin's book did not end the preoccupation of the social sciences
with mathematics and statistics. Statistical analysis continues to be an
important research tool, even though there are situations where
measurement may be out of place. Indeed, it has been argued that there
is also sometimes a preoccupation with qualitative aspects of research:
I
Possibly more widespread than the mystique of quantity, and
certainly more pernicious in its effect, especially on behavioral
science, is a corresponding mystique ofquality. This mystique, like
its counterpart, also subscribes to the magic of numbers, only it
views their occult powers as a kind of black magic, effective only
for evil ends, and seducing us into giving up our souls for what,
after all, is nothing but dross. 51
The mystique of quality insists that to a significant extent it is not
possible to express important conclusions about human behavior solely
47. Id.
48. Id.
49. Id.
50. Id. at 130.
51. ABRAHAM KAPLAN, THE CONDUCT OF INQUIRY: METHODOLOGY FOR
BEHA VIORAL SCIENCE 206 (1964).
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CAPITAL SENTENCING
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by the use of numbers. Methodologist Abraham Kaplan explains, "As
my friends at the University of Michigan have sometimes formulated
this view, 'If you can measure it, that ain't it!"'52 Kaplan observes:
"The point is that both quality and quantity are misconceived when
they are taken to be antithetical or even alternative."53 There is a place
for both approaches to analysis of human behavior and human
problems. Even so, the kind of sham quantification of truly nonscalar,
qualitative data denounced by Sorokin would seem to lead to error.
There is a point beyond which it is not possible to convert inherently
subjective matters into objective data of the kind that can be measured
and thereafter dealt with as objective phenomena.
III.
SHAM OBJECTIVITY IN CAPITAL SENTENCING
Although statistical methodology and mathematics do not play
a large role in the Supreme Court's capital case jurisprudence,54 it can
be argued that the Court is making a mistake quite similar to that
criticized by Sorokin: the Court is trying to impose an objectivity
impossible of attainment upon the process of capital sentencing, a
process so inherently subjective that it is not susceptible to effective
control by lists of aggravating and mitigating "factors" that can be
added up and compared in an effort to determine which list
"outweighs" the other. Indeed, such lists of aggravating and mitigating
factors are not generally used in any other kind of criminal cases. The
United States Sentencing Commission's sentencing guidelines can be
thought of as something like a compilation of aggravating and
mitigating factors, 55 and those guidelines apply in non-capital cases.
But the federal sentencing guidelines represent an attempt to consider
the ep.tire relevant background of a convicted offender, and to arrive
at a sentence that takes into account everything about the individual
to be sentenced. Further, the purposes of the federal sentencing
guidelines include the goal of rehabilitating the offender56 as well as
incapacitating him or her and providing just punishment.
52. Id.
53. Id. at 207.
54. No doubt this is matter of keen disappointment for many. Consider the Court's
refusal to be guided by the available statistical data presented in McCleskey v. Kemp, 481
U.S. 279, 312-13 (1987), concluding that while there was "a discrepancy [in capital sentencing]
thai appears to correlate with race," that discrepancy does not "demonstrate a constitutionally
significant risk of racial bias affecting the Georgia capital sentencing process."
55. See United States Sentencing Commission, FEDERAL SENTENCING GUIDELINE
MANUAL (1987).
56. Id. at 1.
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The same cannot be said, of course, for capital case sentencing
schemes. There is certainly no question of rehabilitation of the offender,
and the states' capital sentencing sche~es reflect an intense
preoccupation with the task of excluding things from consideration,
rather than broadly including everything of relevance. One would have
thought that in formulating a procedure for deciding who is to be killed
and who is to be spared, each state would have approached the task
by seeking to include everything that could have a bearing on the issue.
One might have supposed that the states wou),d have followed the path
recommended by Karl Llewellyn when he refused to attempt a defInition
of law itself:
A definition both excludes and includes. It marks out a field. It
makes some matters fall inside the field; it makes some fall outside.
And the exclusion is almost always rather arbitrary. I have no desire
to exclude anything from matters legal. In one aspect law is as
broad as life, and for some purposes one will have to follow life
pretty far to get the bearings of the legal matters one is examining.
I say again, therefore, that I shall not attempt a definition. I shall
not describe a periphery, a stopping place, a barrierY
Instead, what the states did, in practice, had, the effect of making the
"rather arbitrary"58 kinds of exclusions about which Llewellyn
complained. And the Supreme Court found it necessary to devote an
inordinate amount of time and effort to the process of deciding which
exclusions were acceptable and which would not pass constitutional
muster. Again, such lists of aggravating arid mitigating factors are
unique to capital case sentencing, for the most part.59
Regulating the exercise of discretion on the part of the sentencer
is not unique to capital cases. As Barry Nakell and Kenneth A. Hardy
pointed out in their 1987 study of the arbitrariness of the death penalty:
57. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 Colum. L. Rev. 431, 432
(1930).
58. [d.
59. It is true that aggravating factors can be considered in non-capital cases, and that
such factors can increase the severity of the punishment. For example, in Texas the use or
exhibition of a deadly weapon during the commission of a felony offense can result in the
unavailability of probation for the offender. Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2)
(Vernon 1989). Similarly, the use or exhibition of a deadly weapon during the commission of
a felony can result in an offender having to serve more time in prison before he or she
becomes eligible for parole. Tex. Code Crim. Proc. Ann. a~. 42.18, § 8 (Vernon 1989). But
even though such aggravating factors play a role in sentencing and the punishment to be
imposed on the offender, they are not employed in the same way that aggravating and
mitigating factors are used in capital cases. There is no attempt, in the use of such factors in
non-capital cases, to eliminate other kinds of evidence, as in the capital case jurisprudence.
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The problem of controlling discretion is not unique to capital
punishment; it is a characteristic of the criminal justice system in
general. Any arbitrariness in sentencing, to the extent that it exists,
is probably a product of processes common to capital and
noncapital cases. That arbitrariness may not be the unique feature;
the severity of the penalty is. The overarching question is whether
that makes any difference. 6O
And the further overarching question, for purposes of the present
discussion, is whether the capital sentencing procedures approved by
the Supreme Court, including the lists of aggravating and mitigating
factors and the treatment of sentencing evidence mandated by those
lists, eliminates significant arbitrariness. Lawyers and judges tend to
rely perhaps too heavily upon procedure itself. Nakell and Hardy
commented:
Ordinarily, a judicial decision about whether a decision-making
process is arbitrary is based on a determination of whether the
system lacks necessary procedures. Therefore, the standard
constitutional remedy for arbitrariness is simply the erection of
procedural safeguards. Confidence in the efficacy of procedure as
the instrument for the protection of liberty is a hallmark of our
due process jurisprudence. Once the procedures are in place, the
Court customarily assumes they will work and does not generally
inspect their performance. 61
Nakell and Hardy acknowledged that Furman was different, holding
"that because the death penalty is different, the traditional procedural
remedies were not sufficient. "62 But that means, as they also pointed
60. BARRY NAKELL & KENNETH A. HARDY, THE ARBITRARINESS OF THE DEATH
PENALTY 29-30 (1987) (footnote omitted). Nakel1 and Hardy carried out an empirical study
which examined "the relationship between the death penalty on the statute books and the
death penalty in practice," conducting their study "on homicide cases that arose in North
Carolina during the first year of that state's death penalty statute containing the new
procedures." Id. at xiii. They col1ected information about the defendants, the victims, and
circumstances of the offenses, and the processing of the cases through the judicial system,
subjecting all of the data to statistical analysis. They found that "although the legal standards
were the most consistently significant factor in the outcomes at al1 stages of the capital
punishment process, considerable variation in the results cannot be explained by the legal
standards alone and therefore represents arbitrariness." Id. at xii-xiv. They identified several
extralegal factors that affected the outcome of the cases involved. See text accompanying note
67, infra.
61. Id. at 38 (citing Kent v. United States, 363 U.S. 541, 555 (1966); Leeper v. Texas,
139 U.S. 462, 468 (1891); and Hurtado v. California, 110 U.S. 516, 536-37 (1884».
62.Id.
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out, that since the Supreme Court in its 1976 decisions 63 "upheld the
new procedures on their face, as McGautha did for the former
procedures, the 'death is different' doctrine should require the Court
to reexamine them in practice, as Furman did for the former
procedures."64 Certainly the Court has examined those procedures "in
practice" since Furman, although as noted earlier the Court refused
to be guided by the available statistical data regarding racial
discrimination in the imposition of the death penalty in the McCleskey6S
case. The Court's examination of the procedures "in practice,"
however, has been significantly limited to evaluation of things like the
kinds of evidence that will or will not be considered during the penalty
phase of a case. That sort of limitation, with its heavy and misguided
emphasis on what Sorokin called "quantophrenic preoccupation,"66
has contributed to the elaborate, but mistaken, illusion that the Court's
capital case jurisprudence has fostered schemes which provide carefully
guided discretion in capital sentencing. The notion seems to be that
if the right kinds of lists can be compiled, and the states compelled
to adhere to them in the sentencing stage of capital cases, then all will
be well: the jury will hear only the right kind of evidence, the decision
making process will be properly guided, and there will therefore be
no arbitrariness in death sentences resulting from the process.
Trial judges, prosecutors and defense lawyers know that the most
critical sort of decision making in capital cases takes place before trial.
Nakell and Hardy, for example, concluded in their study of North
Carolina cases under the new death penalty statutes that there were
"extralegal factors that had strong relationships with the outcome at
several discretionary stages. "67 They found that:
Those extralegal factors are, in the pretrial stages, the judicial
district in which the case was processed and the race of the
defendant; at the verdict stage, an extralegal factor is the race of
the victim. Obviously, the jury was an important discretionary
decision maker for the cases that went to trial. Nevertheless, the
prosecutor exercised far greater discretionary influence over the
course of the process through control over the charging and guilty
63. In Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976),
and Jurek v. Texas, 428 U.S. 262 (1976). In Woodson v. North Carolina, 428 U.S. 280 (1976),
and Roberts v. Louisiana, 428 U.S. 325 (1976), the Court struck down the mandatory death
penalty schemes involved.
64. NakeIl & Hardy, supra note 60, at 38 (the references are to McGautha v. California,
402 U.S. 183 (1971), and Furman v. Georgia, 408 U.S. 238 (1972».
65. McCleskey v. Kemp, 481 U.S. 279 (1987).
66. Sorokin, supra note 36, at 103.
67. NAKELL & HARDY, supra note 60, at xiv.
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plea negotiation decisions that determined whether a case went to
trial at all. 68
Elaborating on this aspect of capital cases, Nakell and Hardy reported
that "[t]he indictment stage is only the first opportunity that the
prosecutor has to exercise discretion in the processing of homicide
cases,' '69 pointing out that even after indictment the prosecutor has
control over whether to reduce or dismiss first degree murder charges,
and that this can be done on the prosecutor's own initiative, or after
negotiation with defense counsepo Significantly, they found that
"[a]lthough the evidence was ... a very strong predictor of whether
a defendant was brought to trial for first degree murder . . . there was
still considerable' variation in the decisions unaccounted for by the
evidence."71 Their final conclusion on this aspect of their study was:
The prosecutor's discretionary decisions had a significant effect
on whether a case was brought to trial for first degree murder
without regard to the quality of the evidence or the seriousness
of the case. That discretion was exercised in connection with the
charging, dismissal, and plea bargaining decisions. If the prosecutor
took the case to trial, the trial and sentencing juries, the trial judge,
the appellate court, and the governor might make impo.rtant
discretionary decisions. The prosecutor's earlier discretion,
however, may fairly be singled out as the one with the widest
practical impact.72
Nakell and Hardy determined that "the chances of defendants in
cases ,vith the same quality of evidence being brought to trial on a
first degree murder charge, and therefore at risk of a death sentence,
depended to a significant extent . . . on what judicial district processed
the case.''73 They found that most of the districts brought between 5
percent to 15 percent of their cases to trial as first degree murder
prosecutions, but that "at least two districts had aberrantly high rates,
one of 42 percent and the other of 40 percent,"74 so that "Controlling
for the quality of the evidence in the cases, at least three districts
operated outside the norms established by the rese'75 Expressed in
68.ld.
69. ld. at 130.
70.ld.
71. ld. at 131.
72. ld. at 152.
73.ld.
74.ld.
75.ld.
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terms of the chances of a defendant going to trial as a capital defendant,
they reported that in one of the aberrant districts studied, "the odds
of a defendant being brought to trial on first degree murder were 158
times those of a similarly situated defendant in a control group; in
a second [aberrant district], 18 times grater; and in a third [aberrant
district], 9 times greater."76
This hardly comes as news to experienced trial judges, prosecutors
and defense lawyers. They know from their own direct experience that
the results of studies like that done by NakeU and Hardy are providing
accurate data on what actually goes on in processing defendants through
the capital trial and sentencing systems of our states. This aspect of
the capital sentencing process in the United States should not come
as a surprise to interested legal and other scholars. It has been discussed
frequently enough in the literature to make it almost a matter of
common knowledge.
Welsh S. White, in his thorough examination of the procedural
safeguards employed in capital cases, noted "the prosecutor's ability
to manipulate the system"77 and the fact that such ability affects the
operation of the system. White also commented on the quality of
defense counsel as a factor of great signifIcance in the process of
determining which capital defendants are actually sentenced to death,
concluding that variations in the quality of representation given by
defense counsel are not likely to change, so that "the objective of
securing the evenhanded application of capital punishment is likely to
remain an illusory goal."78 In a subsequent book on the death penalty,
White discussed Justice Byron White's evalu;ation for the plurality in
Gregg v. Georgia79 of the effect that the pl~a bargaining process has
in the-determination of which defendants will stand trial facing a death
sentence. Justice White found "untenable" the argument that
prosecutorial discretion is standardless and therefore would result in
wanton and freakish imposition of the death penalty.80 Regarding
Justice White's conclusion, Welsh White commented:
Justice White's premise, of course, is that i~ determining whether
the death penalty will be charged, prosecutors will be influenced
by the same factors as the jury will be in determining whether the
death penalty will be imposed. In the context of plea bargaining,
76.Id.
77. WHITE. LIFE IN THE BALANCE: PROCEDURAL SAFEGUARDS IN CAPITAL
CASES 14 (1984).
78.Id.
79. 428 U.S. 153 (1976).
80. 428 U.S. at 225.
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however, this premise is very dubious. The vast empirical literature
relating to plea bargaining indicates that it operates pursuant to
dynamics that are totally different from those that apply in criminal
trials. This literature has not focused specifically on plea bargaining
with capital defendants. Over the past two years I have conducted
numerous interviews with defense counsel who specialize in capital
cases. These interviews indicate that the likelihood of a plea bargain
in a capital case will be dramatically affected by factors that have
nothing to do with the nature of the crime or the strength of the
evidence against the defendant. 81
White then discussed such factors as the place where the crime was
committed, the widespread practice of offering most capital offenders
an opportunity to plead guilty, the fact that prosecutors in small
counties are more likely than prosecutors in larger counties to offer
a plea bargain in capital cases, and the experience and ability of the
defense lawyer h.andling the case. 82 White concludes:
These observations show that the prosecutor's decision to plea
bargain is certainly not based exclusively on his assessment of the
nature of the alleged capital offense or the strength of the
government's case. Indeed, the existing literature suggests that these
factors are of secondary importance. Prosecutors have offered plea
bargains even in cases where the defendant's crime seems especially
heinous and the evidence of his guilt is strong. 83
81. WHITE, THE DEATH PENALTY IN THE EIGHTIES: AN EXAMINATION OF
THE MODERN SYSTEM OF CAPITAL PUNISHMENT 32 (1987) (citation to general plea
bargaining literature omitted).
82. ld. at 32-35.
83. Id. at 35. Regarding the latter point, about a plea bargain in a case where the crime
was especially heinous and the evidence of guilt was strong, I was involved as defense counsel
in a case originally charged and indicted as capital, but which was reduced to a non-capital
murder charge prior to trial for the sole reason that the prosecutor was a candidate in a race
for the state senate, and did not have time to try the case as a capital case, particularly in
view of the lengthy voir dire examination of prospective jurors that would have been required.
The trial of the case as a capital case would have seriously disrupted the campaign schedule.
It was expressly negotiated and agreed between the prosecutor, defense counsel, and the capital
defendant, that if the defense would seek a continuance and thus enable the prosecutor to
meet the obligations of the various campaign trips that had been scheduled, the charge would
be reduced from capital murder to non-capital murder. That was done, the trial was held as
a non-capital case, and the defendant was convicted of murder by a jury and sentenced to the
state penitentiary. Perhaps understandably, I am not at liberty to provide a citation to that
case, and indeed I would not want to do so, since an appropriate result was obtained in the
case (from the standpoint of the prosecution and society) even in the absence of a capital
sentence, and the prosecutor in question won election to the state senate and has been an able
and effective public servant in that capacity over the years. But the case does serve to illustrate
the point: plea bargains, reduction of charges to non-capital murder, and similar decisions by
prosecutors in capital cases, quite often have little or nothing at all to do with the kinds of
issues sentencing judges or juries consider at the penalty phase of a capital trial.
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White argued that Justice White's assumption about prosecutorial
discretion in capital cases is incorrect, and "[t]hus the Court's
conclusion that the death penalty will not be arbitrarily applied is
suspect," with this conclusion suggesting "serious questions about the
constitutionality of our present system of capital punishment."84
Charles L. Black, Jr., made the same points in discussing how
the charging decision is made:
The rough answer (not subject to sufficient qualification to make
analysis of the qualifications here worthwhile) is that the prosecutor
makes this decision, and that his decision is within large limits
"discretionary"-subject to no clearly statable rule, but formed,
even by the most conscientious of prosecutors, on the basis of an
open-ended series of factors, such as an estimate of difficulties of
proof or a belief that a charge of the maxim,um offense that might
be proved would result in an unduly severe punishment given the
circumstances, and so on. It is the "and so on" that is most
important, for there is no rule to bar entry of any noncorrupt
consideration-and the occasional entry of a corrupt consideration
is exceedingly hard to establish. 85
Significantly, Black insists that there is not "any practicable way to
reduce this process to rule."86 Accordingly" "within any foreseeable
future, one of the absolutely crucial decisions for life or death-the
decision whether to offer the defendant a chance to plead guilty to
a noncapital offense-will be made administratively, on the basis of
administrative discretion, without clear stanpards in law. "87
Another excellent study demonstrating the same aspects of the
prosecutor's unguided discretion is that of William J. Bowers, who
reached conclusions similar to those of the ~tudies already cited, and
who observed:
Perhaps, indeed, it is inevitable that capital punishment will be
used in an arbitrary and discriminatory manner. Because death is
the supreme punishment, it will be reserved for the crimes people
find most shocking and abhorrent-those that most provoke anger,
inflame emotions, and incite fear and apprehension. In other words,
this form of punishment, which, according ~o the Supreme Court,
must be held most strictly to the standards of just retribution
84.Id.
85. CHARLES L. BLACK, JR., Capital Punishment: The Inevitability of Caprice and Mistake
46-47 (1978).
86. Id. at 51.
87.Id.
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because it is "different in kind" from other forms of punishment,
may at the same time be the one most subject to the deeply rooted
passions and prejudices that will cause its application to depart
from the retributive justice model. 88
And while dealing with this aspect of prosecutorial discretion, Bowers
asserts, as I do in this article, that capital punishment, can serve to
draw distinctions among crime and criminals that are not, and cannot
be, reflected in the law, but that do reflect social realities-such as
who the victims and offenders are. In effect, the symbolic and defInitive
character of death as punishment may make its use peculiarly sensitive
to social forces beyond the realm of law and justice. 89
It seems to me that Bowers is correct in this. In any event, the
death penalty selection process is clearly not susceptible to effective
control by lists of aggravating and mitigating factors, although the
Supreme Court's capital case jurisprudence plainly assumes that such
lists, along with other procedural protections, are adequate to control
the process so as to eliminate arbitrariness of an unconstitutional
dimension. It is for this reason that I suggest the Court's objectivity
is a sham objectivity. With respect to the aggravating and mitigating
factors, Bowers states that the Court has made the following basic
assumptions:
1. That sentencing guidelines within the context of a separate
sentencing phase of the trial will effectively focus the attention and
concern of sentencing authorities on selected legally salient
characteristics of the crime and the convicted defendant, and thus
effectively remove legally irrelevant factors from consideration in the
sentencing decision.
2. That automatic appellate review of all death sentences will
serve as a check on findings of fact with respect to aggravating and
mitigating circumstances and, by application of the similarity standard,
will detect and correct any tendency of sentencing authorities to use
the remaining discretionary powers in an arbitrary or discriminatory
manner.
3. That the sentencing and review procedures under these statutes
will counteract any tendency toward the displacement of arbitrariness
or discrimination to other (earlier) points in the handling of potentially
capital cases, in part because the sentencing guidelines will also influence
the exercise of discretion at other decision points.
88. WILLIAM J. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN
AMERICA, 1864-1982 205 (1984).
89. Id.
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4. That variations among these statutes in the restrictiveness of
sentencing guidelines and the particular rules. and procedures governing
the sentencing decision, providing they do not eliminate individualized
treatment, will not impair their effectiveness in removing arbitrariness
and discrimination from the administration of capital punishment.90
And Bowers asserts that "[w]hether, in fact, these reforms will
remove arbitrariness and discrimination from the administration of
capital punishment is ultimately an empirical question. "91 Bowers
concludes, with the other studies I have cited, that there is abundant
empirical evidence of continuing arbitrariness and discrimination in
the administration of the death penalty, notwithstanding the lists of
aggravating and mitigating factors, and the Supreme Court's
jurisprudence dealing with the formulation and use of those lists.
Bowers explains:
The evidence of arbitrariness and discrimination presented here is
qualitatively more than a statistical demonstration that certain
states' sentencing practices have failed to meet the Furman
standard. Beyond this, we have seen that the arbitrariness is
manifold in its links to race, location witb;in the state, and other
personal, situational, and social influencesr that it is pervasive in
its presence at various decision-making points in the handling of
capital cases; that it is intractable under different kinds of statutes
in different states; and that it is replicated in different kinds of
studies using different kinds of data. These findings represent an
extension of our perspective on arbitrarines~ in capital punishment
in the sense that they explicate some of the ways in which extralegal
influences operate even in the presence of post-Furman statutory
reforms-how prosecutors, defense attorneys, and judges, as well
as jurors, become the agents of both systematic and unsystematic
arbitrariness.92
Examples of other books and studies establishing the continuing
arbitrariness of the death penalty process could be set forth here, but
perhaps the material cited is adequate to establish that a significant
body of literature exists on this issue, and that, as Bowers put it, the
findings are "replicated in different kinds of studies using different
kinds of data, "93 obtaining each time subst~tially the same findings
and reaching basically the same conclusions. And so I believe it is a
fair judgment, well supported by the available evidence in the literature,
90. Id. at
91. Id. at
92. Id. at
93. Id. at
201-02.
202.
372-73.
373.
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that the Supreme Court's efforts to impose objectivity in capital
sentencing have been unsuccessful, and that any resulting apparent
"objectivity" is merely a sham.
Robert Weisberg has noted Justice Thurgood Marshall's angry
complaint "that the Court has asked virtually nothing of the states
that they were not doing before Furman, and essentially he is right. "94
Weisberg states: "It is as if the constitutional strictures on the death
penalty are merely a matter of legal aesthetics. The state will satisfy
the Court if it can describe its penalty scheme according to some
rational-looking form-indeed some metaphor of rational form. "95
Expanding on this theme, Weisberg insists that:
The Court's experiment in reducing the death penalty to the rule
of law has devolved to a merely aesthetic requirement: the states
must have some sort of penalty trial law on their books to fill the
embarrassing gap created by Furman. The law must somehow
identify a .class of death-eligible murderers smaller than the class
of all murderers, must give some sentencer some discretion about
choosing which of the eligibles to execute, and must grant
defendants a fairly broad opportunity to make a case for mitigation.
Beyond that, the rule may be of any kind, and the Court will not
monitor its enforcement.96
Weisberg's assessment of the situation seems to me to be fair and
accurate. That is, in fact, where the Court's capital case jurisprudence
has led to date: instead of true objectivity, and the elimination of
arbitrariness in response to the command of Furman, the actual
requirement is a mere aesthetic one, which can be met easily by "some
metaphor of rational form."97
IV.
REASONS FOR THE PRESENT SITUATION
The reasons for the present situation are as disturbing as the
situation itself. I am persuaded that the basic reason why the Supreme
Court has allowed its capital case jurisprudence to deteriorate to the
condition it is now in can be found in the simple fact that apparently
most of the citizens of the United States support the death penalty.
Indeed, apparently even most lawyers in the United States support
94. Weisberg, Deregulating Death, in 1983 Sup. Ct. Rev. 305,354 (1984) (citation omitted
to zant v. Stephens, 462 U.S. 862, 906-11 (1983) (Marshall, J., dissenting».
95. [d.
96. [d. at 358.
97. [d. at 354.
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capital punishment, with the American Bar Association Journal
reporting in 1985 that 68 percent of lawyers "favor the carrying out
of capital punishment sentences already imposed by the courts. "98 The
same article reported that support by the general public for the death
penalty had risen to 72 percent, "the highest favorable percentage since
1936."99 Further, opinion polls show that the majority of our people
believe that the death penalty is a deterrent. 1oo
Walter Berns, in arguing for the death penalty, acknowledged that
the Court's response to public opinion was a significant part of the
reason for the Court's decision in Furman. Berns said, "judges are
not immune to popular opinion or able to isolate themselves completely
from the trend of the times, and the trend [in 1972] was clearly in the
direction of abolition."101 In the same way, "polls on public support
for the death penalty have been heeded by the Supreme Court as
indicating that 'evolving standards of decency' do not preclude use
of capital punishment,"102 in the years following the Furman decision.
"Judicial interpretation ofthe Eighth Amendment's prohibition of cruel
and unusual punishment has relied, in part at least, on public opinion
regarding the bounds of appropriate penalty." 103 Apparently the shift
in opinion from opposition to support took place around 1966:
In 1966, Gallup and Harris polls showed the American public to
be, by a scant majority, in opposition to capital punishment-a
trend toward declining support extending ftom early measures in
the 1930s. However, with 1966 began a shift in opinion:
In 1969, the level of support for the death penalty had risen
to 51 percent, and by 1976, according to a survey carried out by
the National Opinion Research Center, over 65 percent of
Americans supported capital punishment for the crime of murder. 104
In any event, I am persuaded that Weisberg's analysis is correct
with respect to the present death penalty schemes being "a merely
aesthetic requirement"IOS insofar as the present Supreme Court is
concerned. While it is true that "[t]he law of Western society
98. Reskin, Law Poll: Majority of Lawyers Support Capital Punishment, A.B.A.J. Apr.
1985, at 44.
99.Id.
100. ROGER HOOD, THE DEATH PENALTY: A WORLD-WIDE PERSPECTIVE 153
(1989).
101. WALTER BERNS, FOR CAPITAL PUNISHMENT: CRIME AND THE MORALITY
OF THE DEATH PENALTY 4 (1979).
102. SARAH T. DIKE, CAPITAL PUNISHMENT IN THE UNITED STATES 60 (1982).
103. Id. at 60-61.
104. Id. at 61 (citations to the relevant studies omitted).
105. Weisberg, supra note 94, at 358.
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traditionally is analyzed as an autonomous, logically consistent legal
system in which the various rules are derived from more abstract
norms,"I06 it is also true that the Supreme Court follows the election
returns (and one might also insist that the Supreme Court, in the sense
of the source of its justices, follows from the election returns). In
following the election returns, the current Supreme Court seems driven
to allow capital punishment into the indefinite future, provided only
that each state seeking to use it will first implement a scheme of
punishment that comports with Weisberg's criteria: the law must
"somehow identify a class of death-eligible murderers smaller than the
class of all murderers, must give some sentencer some discretion about
choosing which of the eligibles to execute, and must grant defendants
a fairly broad opportunity to make a: case for mitigation."107
A very convincing argument has been made by Franklin E. Zimring
and Gordon Hawkins to the effect that our nation's present use of
capital punishment is related to the death penalty's symbolic character,
and to "the ritual or ceremonial function of . .. capital
punishment. . . ." 108 They explain that:
The extensive ethnographic literature on ritual and symbolism
focuses mainly on "primitive" societies, tending to overlook the
collective ceremonials and focal rituals of large and complex
modem societies. Our own twentieth-century institutions and
practices, in which what Durkheim called the "collective
consciousness" is expressed, have been largely ignored. But it seems
likely that the symbolic significance of death penalty legislation,
the ritual nature of the murder trial, and the incantatory power
of the death sentence constitute a large part of the appeal for
supporters of the death penalty. 109
Zimring and Hawkins point out that this symbolic and ceremonial
function of capital punishment "may suggest an explanation for the
curious ambivalence in contemporary societies that want to preserve
death penalty legislation and murder trials yet appear to feel no need
for executions."llo The reason for this is that:
In a simple, homogeneous tribal society a human sacrifice
performed with the intention of influencing or manipulating the
106. LEOPOLD
275 (1971).
POSPISIL,
ANTHROPOLOGY OF LA W: A COMPARATIVE THEORY
107. Weisberg, supra note 94, at 358.
108. FRANKLIN E. ZIMRING &
GORDON
HAWKINS, CAPITAL PUNISHMENT AND THE
AMERICAN AGENDA 11 (1986).
109. Id. (footnote omitted).
110.Id.
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course of human events is required. In larger, more complex
societies the same psychological need is fulfilled, without an actual
sacrifice, by the performance of the preliminary rituals. The latent
social function is the same. 111
Elaborating on the theme of our desire to preserve death penalty statutes
notwithstanding our actual reluctance to carry out large numbers of
executions at a swift pace, Zimring and Hawkins comment upon the
astonishing backlog of condemned prisoners now being held in
American penitentiaries:
The circumstances of capital punishment in the United States of
the 1980s are unprecedented. At the midpQint of the decade some
1,700 prisoners were held by state authorities under "active
sentences of death," cases where no outstanding court order or
executive decision has reversed a death sentence following a murder
conviction. The american megaprison now has, increasingly, a
mega-death row as its seventh circle. Either we are on the verge
of a momentous change in American execution policy, or we are
engaged in a gruesome charade. 112
The statistical reality of the present backlog of prisoners who have been
condemned to death in the states using capital punishment is unique
in American history. "This is by far the largest collection of the
condemned in American history. It exceeds by a factor of five the total
number of executions in the United States and Western Europe in the
previous twenty-five years."113 Indeed, "if present trends in both death
sentences and executions continue for a very few years, the number
of those awaiting execution will equal the number executed in the past
half-century."114 As of 1986, the date of Zimring and Hawkins' book,
"[t]o keep pace with the number of death sentences issued annually
under state penal schemes approved by the U.S. Supreme Court is to
live in a nation that executes about 300 people per year, and perhaps
one for each day of the year."lIS
The ritual and symbolic nature of the death penalty is further
indicated by the fact that the most consistent commitment to retention
and use of capital punishment has been in the South. In fact, "[a]t
first sight, so striking is the contrast between the South and the other
regions [of the nation] that the South appears to be 'another
111.
112.
113.
114.
115.
[d.
[d. at 95.
[d.
[d.
[d. at 96.
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CAPITAL SENTENCING
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country'. "116 In the South, the backlash following the Furman decision
was particularly excessive:
Some of the initial reaction to this seeming abolition of the death
penalty bordered on hysteria. Michael Meltsner gave some
characteristic examples: Georgia's Lieutenant Governor Lester
Maddox described the decision as a "license for anarchy, rape,
murder." Alabama's Lieutenant Governor Jere Beasley claimed
that "a majority of this nation's highest court has lost contact with
the real world." Atlanta Police Chief John Inman spoke of the
loss of "a definite deterrent to major crimes." Memphis Police
Chief Bill Price asserted that those who had "hesitated to pull the
trigger before just might go ahead now."117
Zimring and Hawkins suggest that "the most plausible explanations
of the political reaction in those states responding to Furman with new
death penalty legislation are from the literature of social psychology,
either the so-called frustration-aggression hypothesis or the theory of
psychological reactance." 118
The frustration-aggression hypothesis states that aggression is
always a consequence of frustration. 119 The psychological reactance
theory is "[e]ven more descriptive of legislative response [to
Furman]."120 Furman was perceived as a loss of freedom to legislate
about capital punishment, and "[t]he loss of freedom to legislate on
the death penalty triggers a strong desire to reassert the legislative power
to act." 121 What happened in the South after Furman seems to confirm
this kind of interpretation:
Almost without exception the states that started executing most
promptly after Gregg v. Georgia were those whose capital
punishment laws Furman had avoided. Far from being
representative of national public opinion, they were drawn from
the same Southern constituency that provided the bulk of executions
over the past half-century. Rather than a resurgent national
perception of capital punishment as the solution to the problem
of criminal homicide, what this pattern illustrates is a state response
to a federal slight that was seen as arbitrary and unwarranted. III
116.
117.
118.
119.
Id.
Id.
Id.
Id.
120. Id.
121. Id.
122. Id.
at 31.
at 38 (footnote omitted).
at 41.
(footnote omitted).
at 42.
(footnote omitted).
at 44.
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Death sentences in the South doubled in reaction to Furman:
Before 1972, when that decision [Furman] was announced, the
number of new death sentences each year in the Southern states
averaged about fifty, with the trend, if any, downward. ·After a
year of rapid legislative adjustment in 1973, the number of new
death sentences each year more than doubl~d, and there is no year
after 1973 in which the number of new death sentences in the South
did not substantially exceed the number of such sentences issued
in any year prior to Furman. 123
That enormous increase in death sentences in the South speaks volumes
about the symbolic nature of capital punishment, particularly in that
part of the nation. Zimring and Hawkins explain:
The doubling of the number of death sentences in the South in
reaction to Furman . . . can be seen as the use of death penalty
policy to express hostility toward the nation~ government's power.
Moreover, the persistence of a higher level of death sentences since
Gregg, and the continued clustering of actual executions in states
of the old Confederacy, provide additional evidence that executions
represent a manifestation of state autonomy that continues to
influence state and local decision makers even when federal
restraints on the freedom to execute have been removed.J24
The symbolic nature of the death penalty is further illustrated, in the
context of the unique role played by the South in this situation, by
the fact that for all practical purposes, capital punishment is not used
in the federal criminal justice system. "Barring a catastrophic
skyjacking incident or presidential assassination, there is no likelihood
of an execution under federal jurisdiction in the next decade."J2S The
United States Department of Justice has not made the active use of
capital punishment in the federal criminal' justice system a "policy
priority." 126 The federal government allows the states to take the lead
(overwhelmingly in the South) in carrying out the symbolic functions
of the death penalty, and for reasons that are reasonably clear:
The reasons go beyond the national government's respect for state
sovereignty. The federal administration can support state capital
punishment provisions, approve from a distance the execution
123.
124.
125.
126.
[d. at 102.
[d. at 152-53.
[d. at 14I.
[d.
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activities of the states, and collect whatever political dividends
attach to that position without itself incurring any execution
backlash. In effect they send surrogates to battle in the war on
crime. 127
The present situation, then, is one in which only the states have
any significant role to play in the utilization of the death penalty, and
among the states those in the South lead the rest of the nation in the
use of capital punishment. The federal government stays out of the
picture almost entirely, with its role being limited to official approval
of capital punishment, while the southern states accomplish
implementation of the penalty as surrogates of the federal government.
There are more condemned persons on death row than can be executed
under the pace of the system now in use. And nothing is changing.
The heart of the matter is that capital punishment is no longer
an instrument of public policy in America, but a symbolic ritual, utilized
to provide assurance that some appropriate response is being made
to violent crime. The present disorder in the Supreme Court's capital
case jurisprudence is symptomatic of the symbolic nature of the death
penalty in modern America. This is not the jurisprudence of a nation
that utilizes the death penalty to rid itself quickly, efficiently and fairly
of those citizens in its midst who commit murder. This is jurisprudence
about a symbol, a ritual, an outmoded practice that bears little
relationship to the reality of our modern national life.
Zimring and Hawkins, it seems to me, make this very clear in
discussing the instruments used to kill the condemned: gas chambers,
electric chairs, the gallows, and recently lethal injection:
By inidcentury, the means of execution employed in the United
States were already regarded as atavistic. Two decades of disuse
since then had rendered chambers and chairs the stuff of wax
museum exhibits rather than the instruments of public policy. Thus
to maintain an active execution policy required a means of killing
less obviously discordant with today's institutions and values. It
is fair to call the search for modern means of executions a public
relations gesture only if it is acknowledged that this sort of "public
relations" is of central importance. Capital punishment could seem
appropriate only if a technique for taking life could be devised
that appeared to be an authentic part of modern America. 128
This explains the move to lethal injection as a more humane, modern
means of killing condemned persons. In the discussions about adopting
127. Id.
128. Id. at 122.
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lethal injection as the modern way of executing criminals, there was
little discussion of what was not humane about electric chairs, gas
chambers and the gallows. Instead, "[t]he use of therapeutic drugs
rather than nontherapeutic poisons, as a means of killing and the
attempt to link death with science and medicine, make sense only if
proponents of lethal injections are seen as pursuing a modern way to
inflict death."!29 The selection oftherapeutic drugs, to be administered
by medically qualified technicians, "was n0t fortuitous; the need was
to define the enterprise of executing people in a way that was consistent
with scientific progress and medical values."!30
Killing people as a response to the problem of murder in our society
is not consistent with scientific progress. At best, capital punishment
is a relic from the dark past, and at worst it is an unfortunate regression,
a capitulation to that past and the more primitive instincts and passions.
While giving in to the public demand for capital punishment, the
Supreme Court is still unwilling to acknowl~dge the data showing that
unfettered pre-trial discretion is what plays the most important role
with regard to who will become a candidate for execution. It is an odd
situation: prosecutors, defense lawyers and trial judges all know how
the system actually makes its pre-trial selections of capital case
defendants, but the Supreme Court stands aloof from reality and
contents itself in case after case with examining the minutiae of the
various state schemes of allowing and prohibiting capital sentencing
evidence. Indeed, the sentencing scheme in Texas as recently revised
will undoubtedly be subjected to the scrutiny of the Supreme Court
as this curious charade is continued.
V.
THE TEXAS RESPONSE TO PENRY
Texas responded to Penry by making some modifications in its
capital sentencing scheme. The scheme, as modified, is instructive as
a further example of the "merely aesthetic requirement"!3! of the
Supreme Court's current capital case jurisprudence for a system of
selecting the death-eligible murderers.
The former scheme allowed three special issues to be submitted
to the sentencing jury:!32 one on whether the act of the defendant that
caused the death of the deceased was deliberate; one on whether there
is a probability that the defendant will commit criminal acts of violence
129.
130.
131.
132.
Id.
Id.
Weisberg, supra note 94, at 358.
See Note 6, supra.
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in the future; and one, if raised by the evidence, on whether the conduct
of the defendant in killing the deceased was unreasonable in response
to provocation, if any, by the deceased. The new scheme eliminates
the first and third questions, but retains the second question regarding
the probability of future violence. 133 There is a new question covering
the situation in which the jury finds ·the defendant guilty as a party
under the applicable sections of the Texas Penal Code134 after
appropriate instructions by the trial court on that matter. The new
provision requires the trial court to submit the following issue:
(2) in cases in which the jury charge at the guilt or innocence stage
permitted the jury to find the defendant guilty as a party under
Sections 7.01 and 7.02, Penal Code, whether the defendant actually
caused the death of the deceased or did not actually cause the death
of the deceased but intended to kill the deceased or another or
anticipated that a human life would be taken. I3S
The state has the burden of proving the issues submitted under the
questions inquiring about future violence and guilt as a party. 136 The
standard is that of beyond a reasonable doubt. 137
Responding to Penry, Texas added the following language to the
instructions to be given the jury in death penalty cases:
(1) in deliberating on the issues submitted under Subsection (b)
of this article, it [the jury] shall consider all evidence admitted at
the guilt or innocence stage and the punishment stage, including
evidence of the defendant's background or character or the
circumstances of the offense that militates [sic] for or mitigates
[sic] against the imposition of the death penalty,138
Under the new, modified scheme, if the jury returns an affirmative
finding to each issue submitted under Subsection (b),139 then it must
answer the follmving issue:
Whether, taking into consideration all of the evidence, including
the circumstances of the offense, the defendant's character and
background, and the personal moral culpability of the defendant,
133.
134.
135.
136.
137.
138.
139.
Tex.
Tex.
Tex.
Tex.
[d.
Tex.
Tex.
Code Crim. Proe. Ann. art. 37.071(b) (Vernon: 1991).
Penal Code Ann. §§ 7.01, 7.02 (West 1974).
Code Crim. Proe. Ann. art. 37.071(b)(2) (Vernon 1991).
Code Crim. Proe. Ann. art. 37.071(e) (Vernon 1991).
Code Crim. Proe. Ann. art. 37.071(d)(I) (Vernon 1991).
Code Crim. Proe. Ann. art. 37.071(b) (Vernon 1991).
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there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment rather than a death
sentence be imposed.140
The statute does not state which party has the burden or proof on that
issue, nor does it state what the standard of proof is to be on that
issue. Presumably those matters will have to be determined through
litigation. The jury is to answer this new special issue "yes" or "no,"
and it cannot answer the issue "no" unless it agrees unanimously and
cannot answer the issue "yes" unless 10 or more jurors agree. 141 The
jury need not agree on what particular evidence supports an affirmative
finding on the issue. 142 If the jury is unable to agree on an answer to
the issue, then the court must sentence the defendant to life
imprisonment rather than death. 143 If the jury returns an answer of
"yes" on the issue, the court must sentence the defendant to life
imprisonment rather than death. l44 It is only if the jury returns an
answer of "no" on that issue, and an answer of "yes" on each issue
submitted under Subsection (b), that the court is authorized (and
required) to sentence the defendant to death. 145 The jury is to be
instructed, under the new scheme, that it "shall consider mitigating
evidence to be evidence that a juror might regard as reducing the
defendant's moral blameworthiness." 146
Given the composition of the present Supreme Court, and the
existing capital case jurisprudence of the Court, it seems reasonably
probable that the Court will put its blessing on this modified Texas
capital sentencing scheme. The matters of which party has the burden
of proof on the new question regarding mitigating circumstances and
what the burden is, will have to be decided through litigation, but once
that has been done the new scheme should pass muster without
difficulty at the Supreme Court of the United States.
But even the modified Texas sentencing scheme is little more than
the "merely aesthetic requirement" described by Weisberg. 147 It does
not reach, or even attempt to reach, the matter of unlimited, unfettered
pre-trial discretion discussed above,148 which infects the capital
punishment systems of the states using the death penalty.
140.
141.
142.
143.
144.
145.
146.
147.
148.
Tex. Code Crim. Proe. Ann. art. 37.071(e) (Vernon 1991).
Tex. Code Crim. Proe. Ann. art. 37.071(f)(2) (Vernon 1991).
Tex. Code Crim. Proe. Ann. art. 37.071(f)(3) (Vernon 1991).
Tex. Code Crim. Proe. Ann. art. 37.071(g) (Vernon 1991).
[d.
[d.
Tex. Code Crim. Proe. Ann. art. 37.071(f)(4) (Vernon 1991).
Weisberg, supra note 94, at 358.
See notes 67-93 and accompanying text.
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VI.
29
CONCLUSION
Capital sentencing evidence after Penry and Payne will, of course,
include more matters than such evidence included before those
decisions. The defendant can bring in more evidence now, and so can
the prosecution. Probably that result is as it should be. In deciding
the terrible question of whether to kill another human being, the
sentencing agency, whether judge or jury, should have available all
relevant evidence bearing upon the issues involved. In that sense, the
Penry and Payne decisions represent some appropriate and desirable
progress. But the real problem remains untouched: the matter of
unlimited pre-trial discretion on the part of the police, the prosecutor
and the grand jury. Even though the Supreme Court of the United
States will neither recognize nor address this aspect of the problem,
it has been thoroughly demonstrated and is understood by all
experienced counsel who have handled capital cases, whether for the
defense or the prosecution. Until that central problem' has been
addressed and dealt with, if possible, the various state schemes for
regulating the presentation of evidence in death penalty cases will
continue to be merely aesthetic requirements, by and large, as some
states, mainly in the South, continue the use of their "chambers and
chairs" and lethal injections and hangings and shootings, the "stuff
of wax museum exhibits rather than the instruments of public policy." 149
In the meantime, capital punishment in our nation will continue on
its present bizarre course, perhaps meeting symbolic and ritualistic needs
in our society, but better explained by anthropologylso than by law.
149. ZIMRING & HAWKINS, supra note 108, at 122.
150. See generally POSPISIT., supra note 106, at 14-16, 20-31.
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