Monday, October 31, 2016
Sherod Thaxton (University of California, Los Angeles (UCLA) - School of Law) has posted Un-Gregg-ulated: Capital Charging and the Missing Mandate of Gregg v. Georgia (Duke Journal of Constitutional Law & Public Policy, Vol. 11, No. 1 & 2, 2016) on SSRN. Here is the abstract:
Arbitrariness and bias in the administration of capital punishment persist after many decades of procedural reforms designed specifically to eliminate these problems. Why have capital punishment systems failed to satisfy the conditions set forth by the U.S. Supreme Court — requiring the death penalty to be administered fairly and consistently, or not at all — despite functioning under the tremendous scrutiny of both the capital defense bar and general public? In this essay, I argue that at least part of the reason capital punishment systems continue to proceed in a constitutionally impermissible manner is the Court's significant narrowing of its holding announced in Gregg v. Georgia. In Gregg, the Court emphasized the importance of proportionality review, entailing the comparison of a defendant's case with similarly situated defendants for the assessment of the appropriateness of the death penalty in each particular case. Less than a decade later, the Court significantly narrowed its holding in Gregg by ruling comparative proportionality review was not constitutionally required. As a result, the Court removed one of the most important procedural safeguards announced in Gregg, especially in light of the growing evidence at the time that capital punishment statutes were being applied arbitrarily and discriminatorily.
Rigorous comparative proportionality review must play a prominent role in the assessment of death penalty decision-making if the Court's constitutional mandate prohibiting arbitrariness and bias is to have any regulatory force. I describe and implement an analytical framework capable of both assessing the overall degree of arbitrariness in capital charging decisions in a state and ranking the comparative performance of jurisdictions throughout the state with respect to their death-noticing behavior. My analysis of eight years of capital charging data in Georgia (1993-2000) reveals that the state's capital punishment system is operating in an extremely arbitrary fashion both within and across jurisdictions. These patterns are wholly inconsistent with the Court's requirement that the death penalty be reserved for the "worst of the worst."