Limitations on Capital Punishment: Equality of Application.
One of the principal objections to imposition of the death pen-alty, voiced by Justice Douglas in his concurring opinion in Furman, was that it was not being administered fairly—that the capital sentencing laws vesting “practically untrammeled discretion” in juries were being used as vehicles for racial discrimination, and that “discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and unusual’ punishments.”208 This argument has not carried the day. Although the Court has acknowledged the possibility that the death penalty may be administered in a racially discriminatory manner, it has made proof of such discrimination quite difficult.
A measure of protection against jury bias was provided by the Court’s holding that “a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.”209
Proof of prosecution bias is another matter. The Court ruled in McCleskey v. Kemp210 that a strong statistical showing of racial disparity in capital sentencing cases is insufficient to establish an Eighth Amendment violation. Statistics alone do not establish racial discrimination in any particular case, the Court concluded, but “at most show only a likelihood that a particular factor entered into some decisions.”211 Just as important to the outcome, however, was the Court’s application of the two overarching principles of prior capital punishment cases: that a state’s system must narrow a sentencer’s discretion to impose the death penalty (e.g., by carefully defining “aggravating” circumstances), but must not constrain a sentencer’s discretion to consider mitigating factors relating to the character of the defendant. Although the dissenters saw the need to narrow discretion in order to reduce the chance that racial discrimination underlies jury decisions to impose the death penalty,212 the majority emphasized the need to preserve jury discretion not to impose capital punishment. Reliance on statistics to establish a prima facie case of discrimination, the Court feared, could undermine the requirement that capital sentencing jurors “focus their collective judgment on the unique characteristics of a particular criminal defendant”—a focus that can result in “final and unreviewable” leniency.213
- 408 U.S. at 248, 257.
- Turner v. Murray, 476 U.S. 28, 36–37 (1986).
- 481 U.S. 279 (1987) (5-to-4 decision).
- 481 U.S. at 308.
- 481 U.S. at 339–40 (Brennan), 345 (Blackmun), 366 (Stevens).
- 481 U.S. at 311. Concern for protecting “the fundamental role of discretion in our criminal justice system” also underlay the Court’s rejection of an equal protection challenge in McCleskey. See discussion of “Capital Punishment” under the Fourteenth Amendment, infra. See also United States v. Bass, 536 U.S. 862 (2002) (per curiam), requiring a threshold evidentiary showing before a defendant claiming selective prosecution on the basis of race is entitled to a discovery order that the government provide information on its decisions to seek the death penalty.