1 - Voice For The Defense Online

"among a Eapriciously selected handful upon whom the deafhpenalty has been imposed,'"Q hut did not claim juries wereresponsible for this capriciousness. He indicated the problemswere systemio, recognizii that police, prosecutorsand judgesshared responsibility for capital sentencing disparities. OnlyJnstice Douglas placed any blame on the jury, criticizing the"discretionary statutes" which were "pregnant with diswimination."-"Georgia was among the first states to pass a revised deathpenalty scheme32. Georgia addressed the problems identifiedin & in several ways. First, ~cor~ianarmwed the classof 'dcath-eliriblc' - defendants. . rc~uirine - -- iuries to find onc ormore statutory "aggravating circumstances" before deathcould be imposed. Next, capital defendants were guaranteedindividualized sentencing by inshucting juries to consider any"mitigating circumstaoces" presented. Finally, the GeorgiaSupreme Court was to perform "proportionality reviews" ofcapital sentences to ensure they were not the result of prejndiceor arbiwariness, and were proportionate tothe penaltics insimilar ~zws.33This new law, along with those of Texas, North Carolina,Louisiana and Florida, was wnsidered by the United SZatesSupreme Court in a series of decisions which form the foundationof American capital punishment jurisprudence. Thefirst such me, Gree~ v. Garvia, was the appeal of TroyGregg, who had been sentenced to die for armed robbery andmurder.The Court considered a question left unanswered in Furman:whether capital punishment was cruel and unusual per se.Denying that "standards of decency had evolved to the pointwhere capital punishment no longer could ba tolerated," the*Court believed "a large proportion ofAmerican societycontinues to regard [capital punishment] as an appropriate andnecessary criminal sanction!" The Court pointed to reviseddeath penalty laws in over thirty-five states followingFurman, and found capital punishment served the purposes ofretribution and detenence.35 Having decided capital punish*ment was not unconstitutional per se, the Court went on toconsider the new Georgla statutes.The Court held the @@gia death penalty complkd witha by adequately guiding the discretion of the jury byrequiring 1) a statutory aggravating circumslance before thedefendant could be considered "death eligible," and 2) considerationof any relevant mitigating circumstances in senteneing.36Because adequately defined guidelines provided a rationalframewark within which to make the sentencing decision,fhe Court found no violation of Furman m the Georgia capitalpunishment law. "Guided discretion" became the benchmarkfor capital punishment law:pV]here dismlion is aflonieda sentencing body an a matterso grave as lhe determination of whether a human lifeshould 68 taken or spored. lhal discrelion must be suitabbdirectedandlimitedso as lo minimize the risk ofwhally orbirravor caprciom action.37PmfiI! v Florida38 wnsidered the revised Florida statutes.Florida juries only make an advisory opinion as towhether a defendant should be sentenced to live or die. Thetrial judge may override the jury's recommendation Althoughin the Court noted that 'Tury sentencing has been considereddesirable in capital cases in order to maintain a link betweencontemporary community values and the Penal system," inthe Court stated:[IYe have] never suggesledthat jury senfencmg is co~rsliiutionallyrequired. And it would appear ihar judicial senteneingshould lead, fanything, to even grealer consistency inprmishment, since a bid judge is more experienced in sentencingthana jury. andlherefore is belfer able to impose sentencessimilar to lhose imposed in analogous cases 4OThese assnmptions are rebutted by later studies which showgreater racial disparity in capital sentenning decisions madeby judges than those made by jurorsf'As in Georgia, Florida required the sentencing authority toconsider aggravating and mitigating faet0rs.~2 Because sentencingdiscretion was guided by a statutory framework, theFlorida law passed muster under &&mu. The Court held thejury need decide the sentence, so long as the sentencingauthority's discretion is exercised along rational, statutorilydefined guidelines.Jurek Y. Texas43 examined the Texas scheme. In Texas,capital murder wsr a distinct offense; the jury bad to find oneof a limited number of statutory aggravating circumstances toelevate a homicide to capital murder. If the aggravating circumstanceswere not found the greatest offense available wasmurder, a non-capital offense. The same sorts of aggravatingfactors wnsidered in sentencing in Georgia and Florida werewnsidered in the guiwinnocence stsge in Texas.At punishment, Texas jurors were asked a set of factual"special issues" reflecting on the culpability of the accused.The speclal issues, at the time of Jurek's trial, required the juryto answer:(1) whether the conduct of the defendant that caused the deathof the deceased was committed deliberatelv and with the reasonableexpectation that the death of the deceased or anotherwould result;(2) whether there is a probability that the defendant wouldcommit criminal acts of violence that would constitute a continuingthreat to sooiety; and(3) ifraised by the evidence, whether the conduct oftbe defendantin killing the deceased was unreasonable in respmse tothe provocation, if any, by the deceased.If the jury unanimously voted 'yes' to the special issues,the judge was required to sentence the defendant to death. Ifthey didnot, the judge was requited to sentence the defendantto life in prison.TCX~ law represents an exception to the "guided discretlon"principle. Because the "special issues" require a jury toVoice 40 - Jrrly/August 2000 -jury Nulificatio~r in Capital Cases