|Pulley v. Harris
[ White ]
[ Stevens ]
[ Brennan ]
Pulley v. Harris
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Almost 12 years ago, in Furman v. Georgia, 408 U.S. 238"]408 U.S. 238 (1972), the Court concluded that the death penalty, as then administered under various state and federal statutes, constituted [p60] a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. At that time, the Court was convinced that death sentences were being imposed in a manner that was so arbitrary and capricious that no individual death sentence could be constitutionally justified. [n1] Four years later, faced with new death penalty statutes enacted by the States of Georgia, Florida, and Texas, a majority of the Court concluded that the procedural mechanisms included in those statutes provided sufficient protection to ensure their constitutional application. See Gregg v. Georgia, 428 U.S. 153 (1976); 408 U.S. 238 (1972), the Court concluded that the death penalty, as then administered under various state and federal statutes, constituted [p60] a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. At that time, the Court was convinced that death sentences were being imposed in a manner that was so arbitrary and capricious that no individual death sentence could be constitutionally justified. [n1] Four years later, faced with new death penalty statutes enacted by the States of Georgia, Florida, and Texas, a majority of the Court concluded that the procedural mechanisms included in those statutes provided sufficient protection to ensure their constitutional application. See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242"]428 U.S. 242 (1976); 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). Thus began a series of decisions from this Court in which, with some exceptions, it has been assumed that the death penalty is being imposed by the various States in a rational and nondiscriminatory way. Upon the available evidence, however, I am convinced that the Court is simply deluding itself, and also the American public, when it insists that those defendants who have already been executed or are today condemned to death have been selected on a basis that is neither arbitrary nor capricious, under any meaningful definition of those terms.
Moreover, in this case, the Court concludes that proportionality review of a death sentence is constitutionally unnecessary. Presumably this is so even if a comparative review of death sentences imposed on similarly situated defendants might eliminate some, if only a small part, of the irrationality [p61] that currently surrounds the imposition of the death penalty. Because, in my view, the evidence available to the Court suggests that proportionality review does serve this limited purpose, I believe that the State of California, through a court of statewide jurisdiction, should be required to undertake proportionality review when examining any death sentence on appeal.
In Furman v. Georgia, supra, and subsequent orders, see, e.g., 408 U.S. 933-940 (1972), the Court invalidated all death sentences then existing in the various States. Although each of the five Justices concurring in the per curiam opinion of the Court authored a separate opinion, it has since been the accepted holding of Furman that, at a minimum, the death penalty cannot "be imposed under sentencing procedures that creat[e] a substantial risk that it [will] be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, supra, at 188 (opinion of Stewart, POWELL, and STEVENS, JJ.).
This was the touchstone of Justice Stewart's concerns in Furman:
These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders . . . many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. My concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race. . . . I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so [p62] wantonly and so freakishly imposed.
408 U.S. at 309-310 (footnotes and citations omitted). Likewise, JUSTICE WHITE concluded that
the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.
Id. at 313. And, although focusing his analysis on the equal protection concerns of the Eighth Amendment, Justice Douglas substantially agreed, noting that
[t]he high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.
Id. at 256. See also id. at 248, n. 11, 249 (Douglas, J., concurring) ("‘A penalty . . . should be considered "unusually" imposed if it is administered arbitrarily or discriminatorily'") (quoting Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1790 (1970)); 408 U.S. at 274-277, 291-295 (BRENNAN, J., concurring). [n2]
These concerns about the irrational imposition of the death penalty were not based on abstract speculation. Rather, they were premised on actual experience with the administration of the penalty by the various States. I will not attempt at this time to summarize the evidence available to the Court in 1972 when Furman was decided. See, e.g., id. at 249-252, 256-257, n. 21 (Douglas, J., concurring); id. at 291-295 (BRENNAN, J., concurring); id. at 309-310 (Stewart, [p63] J., concurring); id. at 364-369 (MARSHALL, J., concurring). Suffice it to say that the Court was persuaded, both from personal experience in reviewing capital cases [n3] and from the available research analyzing imposition of this extreme penalty, that the death penalty was being administered in an arbitrary and capricious manner.
Moreover, this stated concern with the irrational imposition of the death penalty did not cease with the judgments of the Furman Court; indeed, the same focus has been reflected in the Court's decisions ever since. See, e.g., Barclay v. Florida, 463 U.S. 939, 958-960 (1983) (STEVENS, J., concurring in judgment); Zant v. Stephens, 462 U.S. 862, 874 (1983) (characterizing Furman as holding that "‘where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action'") (quoting Gregg v. Georgia, 428 U.S. at 189 (opinion of Stewart, POWELL, and STEVENS, JJ.)); Eddings v. Oklahoma, 455 U.S. 104, 111 (1982) (noting that the Court "has attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused"); id. at 112 (noting that the Court has "insiste[d] that capital punishment be imposed fairly, and with reasonable consistency, or not at all"). Hence, if any principle is an accepted part of the Court's death penalty decisions during the past 12 years, it is that the irrational application of the death penalty, as evidenced by an [p64] examination of when the death penalty is actually imposed, cannot be constitutionally defended.
Even while repeating this principle, however, the Court since Gregg v. Georgia, supra, and its companion cases, has allowed executions to take place, and death rows to expand, without fully examining the results obtained by the death penalty statutes enacted in response to the Furman decision. Indeed, the Court seems content to conclude that, so long as certain procedural protections exist, imposition of the death penalty is constitutionally permissible. But a sentencer's consideration of aggravating and mitigating circumstances, see ante at 51-53, combined with some form of meaningful appellate review, see ante at 54-55, 59 (STEVENS, J., concurring in part), does not, by itself, ensure that a death sentence in any particular case, or the death penalty in general, is a constitutional exercise of the State's power. Given the emotions generated by capital crimes, it may well be that juries, trial judges, and appellate courts considering sentences of death are invariably affected by impermissible considerations. Although we may tolerate such irrationality in other sentencing contexts, the premise of Furman was that such arbitrary and capricious decisionmaking is simply invalid when applied to "‘a matter [as] grave as the determination of whether a human life should be taken or spared.'" Zant v. Stephens, supra, at 874. As executions occur with more frequency, therefore, the time is fast approaching for the Court to reexamine the death penalty, not simply to ensure the existence of adequate procedural protections, but more importantly to reevaluate the imposition of the death penalty for the irrationality prohibited by our decision in Furman.
The current evidence of discriminatory and irrational application of the death penalty has yet to be completely or systematically marshaled. What evidence has been compiled, moreover, has not been properly presented to the Court, and [p65] is not at issue in this case. Nevertheless, as in other recent decisions, the Court today evaluates the procedural mechanism at issue -- in this case, comparative proportionality review -- without regard to whether the actual administration of the death penalty by the States satisfies the concerns expressed in Furman.
The most compelling evidence that the death penalty continues to be administered unconstitutionally relates to the racial discrimination that apparently, and perhaps invariably, exists in its application. The Court correctly avoids the question of racial discrimination as not properly presented in this case. See ante at 41, n. 4 (noting that the Court of Appeals "remanded . . . for a possible evidentiary hearing on Harris' claim that the death penalty was being discriminatorily administered in California"). [n4] But the issue cannot be avoided much longer, as decisions of the lower federal courts are beginning to recognize. See, e.g., Spencer v. Zant, 715 F.2d 1562, 1578-1583 (CA11 1983), rehearing en banc pending, No. 82-8408; Ross v. Hopper, 716 F.2d 1528, 1539 (CA11 1983). See also Stephens v. Kemp, 464 U.S. 1027 (1983) (stay of execution granted pending rehearing en banc in Spencer).
Furthermore, the scholarly research necessary to support a claim of systemic racial discrimination is currently being pursued, and the results of that research are being compiled into a rapidly expanding body of literature. See, e.g., [p66] D. Baldus, G. Woodworth, & C. Pulaski, The Differential Treatment of White and Black Victim Homicide Cases in Georgia's Capital Charging and Sentencing Process: Preliminary Findings (June 1982) (unpublished), reprinted in App. G to Pet. for Cert. in Smith v. Balkcom, O.T. 1981, No. 6978, Exh. E, Appendix D (discrimination by race of victim); Bowers & Pierce, Arbitrariness and Discrimination under Post-Furman Capital Statutes, 26 Crime & Delinquency 563 (1980) (discrimination by race of defendant and race of victim); L. Foley, Florida After the Furman Decision: Discrimination in the Processing of Capital Offense Cases (unpublished), reprinted in App. to Application for Stay in Sullivan v. Wainwright, O.T. 1983, No. A-409, Exh. 33 (discrimination by race of victim); Foley & Powell, The Discretion of Prosecutors, Judges, and Juries in Capital Cases, 7 Crim.Just.Rev. 16 (Fall 1982) (discrimination by race of victim); S. Gross & R. Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization (Oct.1983) (unpublished), reprinted in App. to Application for Stay in Sullivan v. Wainwright, supra, Exh. 28 (discrimination by race of victim); Jacoby & Paternoster, Sentencing Disparity and Jury Packing: Further Challenges to the Death Penalty, 73 J.Crim.L. & Criminology 379 (1982) (discrimination by race of victim); Kleck, Racial Discrimination in Criminal Sentencing: A Critical Evaluation of the Evidence with Additional Evidence on the Death Penalty, 46 Am.Soc.Rev. 783 (1981); Radelet, Racial Characteristics and the Imposition of the Death Penalty, 46 Am.Soc.Rev. 918 (1981) (discrimination by race of victim); M. Radelet & G. Pierce, Race and Prosecutorial Discretion in Homicide Cases (1983) (presented at the Meetings of the American Sociological Association, Detroit, Mich., Sept. 4, 1983), reprinted in App. to Application for Stay in Sullivan v. Wainwright, supra, Exh. 34 (discrimination by race of defendant and race of victim); Riedel, Discrimination in the Imposition of the Death Penalty: A Comparison of the [p67] Characteristics of Offenders Sentenced Pre-Furman and Post-Furman, 49 Temp.L.Q. 261 (1976); Zeisel, Race Bias in the Administration of the Death Penalty: The Florida Experience, 95 Harv.L.Rev. 456 (1981) (discrimination by race of defendant and race of victim). See also C. Black, Capital Punishment: The Inevitability of Caprice and Mistake (2d ed.1981). Although research methods and techniques often differ, the conclusions being reached are relatively clear: factors crucial, yet without doubt impermissibly applied, to the imposition of the death penalty are the race of the defendant and the race of the victim.
Nor do I mean to suggest that racial discrimination is the only irrationality that infects the death penalty as it is currently being applied. Several of the studies cited above suggest that discrimination by gender, e.g., Foley, supra; Foley & Powell, supra, by socioeconomic status, e.g., Foley & Powell, supra, and by geographical location within a State, e.g., Bowers & Pierce, supra; Foley & Powell, supra, may be common. I will not attempt at this time to expand upon the conclusions that these studies may dictate. But if the Court is going to fulfill its constitutional responsibilities, then it cannot sanction continued executions on the unexamined assumption that the death penalty is being administered in a rational, nonarbitrary, and noncapricious manner. Simply to assume that the procedural protections mandated by this Court's prior decisions eliminate the irrationality underlying application of the death penalty is to ignore the holding of Furman and whatever constitutional difficulties may be inherent in each State's death penalty system.
The question directly presented by this case is whether the Federal Constitution requires a court of statewide jurisdiction to undertake comparative proportionality review before a death sentence may be carried out. The results obtained by many States that undertake such proportionality review, [p68] pursuant to either state statute or judicial decision, convince me that this form of appellate review serves to eliminate some, if only a small part, of the irrationality that infects the current imposition of death sentences throughout the various States. To this extent, I believe that comparative proportionality review is mandated by the Constitution.
Some forms of irrationality that infect the administration of the death penalty -- unlike discrimination by race, gender, socioeconomic status, or geographic location within a State -- cannot be measured in any comprehensive way. That does not mean, however, that the process under which death sentences are currently being imposed is otherwise rational or acceptable. Rather, for any individual defendant, the process is filled with so much unpredictability that "it smacks of little more than a lottery system," Furman v. Georgia, 408 U.S. at 293 (BRENNAN, J., concurring), under which being chosen for a death sentence remains as random as "being struck by lightning," id. at 309 (Stewart, J., concurring).
Chief among the reasons for this unpredictability is the fact that similarly situated defendants, charged and convicted for similar crimes within the same State, often receive vastly different sentences. Professor John Kaplan of the Stanford Law School has summarized the dilemma:
The problem [of error in imposing capital punishment] is much more serious if we consider the chances of error in the system to be more than the execution of someone who is completely innocent -- the ultimate horror case. Though examples of victims of mistaken identity are sometimes found on death row, the far more common cases fall into two types. In one, the recipient of the death penalty is guilty of a crime, but of a lesser offense, for which capital punishment is not in theory available. . . .
The second type of error in capital punishment occurs when we execute someone whose crime does not seem so [p69] aggravated when compared to those of many who escaped the death penalty. It is in this kind of case -- which is extremely common -- that we must worry whether, first, we have designed procedures which are appropriate to the decision between life and death and, second, whether we have followed those procedures.
Disproportionality among sentences given different defendants can only be eliminated after sentencing disparities are identified. And the most logical way to identify such sentencing disparities is for a court of statewide jurisdiction [p71] to conduct comparisons between death sentences imposed by different judges or juries within the State. This is what the Court labels comparative proportionality review. See ante at 42-44. Although clearly no panacea, such review often serves to identify the most extreme examples of disproportionality among similarly situated defendants. At least to this extent, this form of appellate review serves to eliminate some of the irrationality that currently surrounds imposition of a death sentence. If only to further this limited purpose, therefore, I believe that the Constitution's prohibition on the irrational imposition of the death penalty requires that this procedural safeguard be provided.
Indeed, despite the Court's insistence that such review is not compelled by the Federal Constitution, over 30 States now require, either by statute or judicial decision, some form of comparative proportionality review before any death sentence may be carried out. [n6] By itself, this should weigh heavily on the side of requiring such appellate review. Cf. Enmund v. Florida, 458 U.S. 782, 788-796 (1982); 458 U.S. 782, 788-796 (1982); Coker v. Georgia, 433 U.S. 584, 593-596 (1977). In addition, these current practices establish beyond dispute that such review can be administered without much difficulty by a court of statewide jurisdiction in each State.
Perhaps the best evidence of the value of proportionality review can be gathered by examining the actual results obtained in those States which now require such review. For example, since 1973, the statute controlling appellate review of death sentences in the State of Georgia has required that [p72] the Supreme Court of Georgia determine
[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Ga.Code Ann. § 17-10-35(c)(3) (1982). See ante at 43, n. 7; Gregg v. Georgia, 428 U.S. at 166-168, 198, 204-206 (opinion of Stewart, POWELL, and STEVENS, JJ.). Pursuant to this statutory mandate, the Georgia Supreme Court has vacated at least seven death sentences because it was convinced that they were comparatively disproportionate. See, e.g., High v. State, 247 Ga. 289, 297, 276 S.E.2d 5, 14 (1981) (death sentence disproportionate for armed robbery and kidnaping); Hall v. State, 241 Ga. 252, 258-260, 244 S.E.2d 833, 838-839 (1978) (death sentence disproportionate for felony murder when codefendant received life sentence in subsequent jury trial); Ward v. State, 239 Ga. 205, 208-209, 236 S.E.2d 365, 368 (1977) (death sentence disproportionate for murder when defendant had received life sentence for same crime in previous trial); Jarrell v. State, 234 Ga. 410, 424-425, 216 S.E.2d 258, 270 (1975) (death sentence disproportionate for armed robbery); Floyd v. State, 233 Ga. 280, 285, 210 S.E.2d 810, 814 (1974) (same); Gregg v. State, 233 Ga. 117, 127, 210 S.E.2d 659, 667 (1974) (same), aff'd on other grounds, 428 U.S. 153 (1976); Coley v. State, 231 Ga. 829, 835-836, 204 S.E.2d 612, 616-617 (1974) (death sentence disproportionate for rape). Cf. Hill v. State, 237 Ga. 794, 802-803, 229 S.E.2d 737, 743 (1976) (death sentence not disproportionate even though unclear which defendant actually committed murder; sentence later commuted to life imprisonment by Board of Pardons and Paroles).
Similarly, other States that require comparative proportionality review also have vacated death sentences for defendants whose crime or personal history did not justify such an extreme penalty. See, e.g., Henry v. State, 278 Ark. 478, 488-489, 647 S.W.2d 419, 425 (1983); Sumlin v. State, 273 Ark. 185, 190, 617 S.W.2d 372, 375 (1981); Blair v. [p73] State, 406 So.2d 1103, 1109 (Fla.1981); McCaskill v. State, 344 So.2d 1276, 1278-1280 (Fla.1977); People v. Gleckler, 82 Ill.2d 145, 161-171, 411 N.E.2d 849, 856-861 (1980); Smith v. Commonwealth, 634 S.W.2d 411, 413-414 (Ky.1982); State v. Sonnier, 380 So.2d 1, 5-9 (La.1979); Coleman v. State, 378 So.2d 640, 649-650 (Miss.1979); State v. McIlvoy, 629 S.W.2d 333, 341-342 (Mo.1982); Munn v. State, 658 P.2d 482, 487-488 (Okla.Crim.App.1983). [n7]
What these cases clearly demonstrate, in my view, is that comparative proportionality review serves to eliminate some, if only a small part, of the irrationality that currently infects imposition of the death penalty by the various States. Before any execution is carried out, therefore, a State should be required under the Eighth and Fourteenth Amendments to conduct such appellate review. The Court's decision in Furman, and the Court's continuing emphasis on meaningful appellate review, see, e.g., ante, p. 54 (STEVENS, J., concurring in part); Barclay v. Florida, 463 U.S. at 988-989 (MARSHALL, J., dissenting), require no less.
The Court today concludes that our prior decisions do not mandate that a comparative proportionality review be conducted before any execution takes place. Then, simply because the California statute provides both a list of "special circumstances" or "factors" that a jury must find before imposing [p74] a death sentence and judicial review of those findings, the Court upholds the California sentencing scheme. At no point does the Court determine whether comparative proportionality review should be required in order to ensure that the irrational, arbitrary, and capricious imposition of the death penalty invalidated by Furman does not still exist. Even if I did not adhere to my view that the death penalty is in all circumstances cruel and unusual punishment, I could not join in such unstudied decisionmaking.
1. In a concurring opinion, I expressed the view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. at 257. See also Gregg v. Georgia, 428 U.S. 153, 227 (1976) (BRENNAN, J., dissenting). Nothing that has occurred during the past 12 years has given me any reason to change these views; if anything, I am today more persuaded of the unconstitutionality of the death penalty than ever before. I therefore adhere to the views I expressed in Furman and Gregg, and would vacate the death sentence imposed on the respondent, Robert Alton Harris.
2. Even the dissenters viewed the concerns expressed about the arbitrary and capricious infliction of the death penalty as the primary basis for the Court's decision:
The decisive grievance of the opinions . . . is that the present system of discretionary sentencing in capital cases has failed to produce evenhanded justice; . . . that the selection process has followed no rational pattern.
408 U.S. at 398-399 (BURGER, C.J., dissenting).
3. In his concurring opinion, JUSTICE WHITE focused on his personal experience:
I need not restate the facts and figures that appear in the opinions of my Brethren. Nor can I "prove" my conclusion from these data. But, like my Brethren, I must arrive at judgment; and I can do no more than state a conclusion based on 10 years of almost daily exposure to the facts and circumstances of hundreds and hundreds of federal and state criminal cases involving crimes for which death is the authorized penalty.
Id. at 313.
4. The Court of Appeals held, in a portion of its opinion not challenged before this Court, that
the district court should, if it becomes necessary, provide an opportunity to develop the factual basis and arguments concerning [Harris'] race discrimination and gender discrimination claims.
692 F.2d 1189, 1197-1199 (CA9 1982). Harris is therefore entitled on remand to develop the evidence and arguments essential to an adequate review of these claims. At the same time, Harris made no showing in support of his wealth and age discrimination claims; the Court of Appeals therefore refused to require an evidentiary hearing or further consideration of these alleged bases for discrimination. Id. at 1199.
5. Perhaps the easiest evidence to assemble in order to highlight the comparative disproportionality between death sentences is to examine the cases proved against the 11 men who have been executed in the United States since 1976. Of those individuals, at least four refused to process appeals on their own behalf, preferring execution to a life in prison. Among the seven others were individuals convicted of the most heinous of crimes. But even among these men, there were still unexplained differences between their crimes which went unaccounted for in their sentences.
For example, Professor Kaplan has focused his comments on the execution of John Spinkellink (spelling of this name varies):
As I read the record, he was probably guilty of voluntary manslaughter, or at most second-degree murder. He was a drifter who killed another drifter who had sexually assaulted him. Although he received capital punishment in Florida, in California most district attorneys would probably have been happy to accept a plea to second-degree murder in such a case.
Kaplan, 1983 U.Ill.L.Rev. at 576. See Spinkellink v. Wainwright, 578 F.2d 582, 586, n. 3 (CA5 1978); Spinkellink v. State, 313 So.2d 666, 668 (Fla.1975). Justice Ervin of the Supreme Court of Florida, writing in dissent, explained the underlying facts that support Professor Kaplan's conclusions:
In this case, it appears that [Spinkellink], at the time of the homicide, was a 24-year-old drifter who picked up Szymankiewicz, a hitchhiker. Both had criminal records and both were heavy drinkers. Szymankiewicz, the victim in this case, was a man of vicious propensities who boasted of killings and forced [Spinkellink] to have homosexual relations with him. [Spinkellink] discovered that Szymankiewicz had "relieved him of his cash reserves."
It was under these conditions that [Spinkellink] returned to the motel room where the homicide occurred. [Spinkellink] testified he shot Szymankiewicz in self-defense. Evidence to the contrary was only circumstantial. In fact, only through such evidence was it possible to infer the crime was premeditated and different from [Spinkellink's] direct testimony that he shot Szymankiewicz in self-defense. The reasoning of this Court on the suddenness in which premeditation may be formed is suspect and allowed the prosecution undue latitude to readily shift from the theory of felony murder to premeditated murder.
It does not appear to me that, in this situation, there was sufficient certainty of premeditated guilt and heinousness to warrant the death penalty. When the nature of the relation between [Spinkellink] and Szymankiewicz is taken into account, along with the viciousness of the victim's character and this theft of [Spinkellink's] money, it is obvious that hostility existed between them that could have produced a mortal encounter that involved self-defense shooting.
* * * *
Truly characterized, the sentencing to death here is an example of the exercise of local arbitrary discretion. The two actors in the homicide were underprivileged drifters. Their surnames, Spinkellink and Szymankiewicz, were foreign and strange to the Tallahassee area. They had no family roots or business connections here. All of the ingredients were present for the exercise of invidious parochial discrimination in the sentencing process which the plural opinions of the majority in Furman condemned. The result here is an old story, often repeated in this jurisdiction where the subconscious prejudices and local mores outweigh humane, civilized understanding when certain segments of the population are up for sentencing for murder.
Id. at 673-674.
Others characterize the December, 1982, execution of Charles Brooks, Jr., as inexcusably aberrational. In particular, it is alleged that the prosecution in Brooks' case failed to prove whether he or his accomplice -- one Woodrow Loudres, who eventually obtained a 40-year sentence in a plea bargain -- fired the fatal shot. Indeed, before Brooks was executed, his prosecutor joined those seeking to stay his execution. See Goodpaster, Judicial Review of Death Sentences, 74 J.Crim.L. & Criminology 786, 786-787 (1983); Los Angeles Times, Dec. 6, 1982, p. 9, col. 1; Los Angeles Daily Journal, Dec. 8, 1982, p. 7, col. 1. See also Brooks v. Estelle, 459 U.S. 1061, 1063 (1982) (BRENNAN, MARSHALL, and STEVENS, JJ., dissenting from denial of stay); Brooks v. Estelle, 697 F.2d 586, 588 (CA5 1982) (per curiam).
6. For a complete list of these state statutes and decisions, see App. A to Brief for Respondent. See also Baldus, Pulaski, Woodworth, & Kyle, Identifying Comparatively Excessive Sentences of Death: A Quantitative Approach, 33 Stan.L.Rev. 1, 2-3, n. 2 (1980); Goodpaster, supra, at 793, n. 61.
Although the Court today holds that the States are not constitutionally compelled to conduct comparative proportionality reviews, each State of course remains free to continue the practice.
7. Ironically, although the California death penalty statute reviewed in this case does not require comparative proportionality review, most other felony sentences in the State are subject to a mandatory, and highly complex, system of comparative review. See Cal.Penal Code Ann. § 1170(f) (West Supp.1983) ("Within one year after the commencement of the term of imprisonment, the Board of Prison Terms shall review the sentence to determine whether the sentence is disparate in comparison with the sentences imposed in similar cases"). California therefore accords greater protection to felons who are imprisoned than to felons who may be executed.