NCJ Number
129045
Journal
New England Journal on Criminal and Civil Confinement Volume: 16 Issue: 1 Dated: (Winter 1990) Pages: 1-20
Date Published
1990
Length
20 pages
Annotation
Two Supreme Court cases, Furman v. Georgia and McCleskey v. Kemp, are central to a discussion of the Court's efforts to devise a system in which the death penalty will be imposed unarbitrarily.
Abstract
Although in Furman (1972) the Supreme Court held that a sentencer could impose the death penalty only according to adequately defined criteria, in McCleskey (1987) the Court was forced to realize that, despite those standards, death sentences were being meted out in a racially discriminatory fashion. The decision in McCleskey, in which the Court ruled that despite statistical evidence, the defendant could not prove he was a victim of purposeful discrimination, was the only consistent result from previous decisions including Furman. The Supreme Court has adopted a procedural approach rather than a result-oriented approach which would be exemplified by a mandatory death penalty for specific crimes. Although approving the idea of a proportionality review, the Court has declined to require it, holding that the application of its standards to sentencing is sufficient to ensure fairness. This article reviews several consequences of death sentence-related decisions including the inevitability of arbitrariness and the jurisprudence of the Court's approach. The author concludes that the Court's attempt to balance fairness and mercy has failed and that sentencing consistency will be achieved only if the unlimited discretion of the sentencer is curtailed. 66 notes