1 - Voice For The Defense Online

find facts, the jury is glven little discretion. However, theCourt held Texas complied with Emmze by requiring theassessment of rmtigating evidence in the sentencing Stage(tluough the future dangerousness special issue), while uarrowingthe class of death-eligible defendants at guiltlinno-~ence.~~ The Court counted on the Texas Court of CriminalAppeals to give the special issues an adequately bmad interpretationto allow the jury to consider any mitigatingevidenceraised, including the defendant's pprir criminalrecord, age, and mental or emotional stateP5In two mnaining con~panion cases to Gr@g, the Cmutstruck down capital punishment schemes because instead of"narrowing" and "channeling" thc jury's discretion, they eliminatedit entirely. h1 Woodson v. Nolth Cumlina?"he Courtstrock down a statute under which any defendant eouvicted offirst degree murder was automafically sentenced to die. Thisscheme failed to give the defendant "particularized considerationof relevant aspects of [his] character and recardThc Court held "the hndanental respect far humanity underlyiugthe Eighth Amendmcnt requires consideration of thecharacter and rccord of the ind~vidual offender and tho circumstancesof the panicnlar offense .!'48 The Court rccognizedthat mandatory d&th penalties functionas an open invitahonfor juries to nullify, if they believe dcath is not appmpriatein the case before them 49In Rob& v. Louisiana 50 the Court fonnd "the constitutionalvice of a mandatory death scntence statute - lack offocus on the circumstances of the particular offense and thecharacte~ and propensities of the offet~der"~' was present. Ifthe jury convicted of murder, death was the only sentence. Tomediate this harsh n~le, Louisiana requircd jurios to be~nstnrcted on lesser ineluded offeoses, n~lrelhev or nof suchznsrruclions netejitsfiJkd bj' evidence.The Court detern~ined Louisiana was inv~ting jurics to nnliifyand "choose a Lesser offense whenever they feel the deathpenalty is imppropriate!'" The only way to spare the &fendani'slife was through jury nullitication, convicting on a lesseroffense whatever the facts. Yet jurors werc sworn not lo dothis durmg i~oirdite. Louisiana was attempting to have it bothways.The Louisiana jury received no guidance as to when otherconsiderations came above their oath. Lomsiana juries wereleft with thesame degree of dwretion found objectionable inm, and were expeotcd to exercise it through ~mlhficalion.This required tho jury's exercise of its powers to beentirely ungnided, and therefore this statute faded to complywith the requirements of w.h a n d its companion cailses wen: based on the assumptionthat jury decision-mmkmg was responsible for arbitraunessand randomness in capilal sentencing, and that controllingjury discdon would resolve the constitutional infumitiesrecognized in -. Thts assumption was never madeby a majority of the F- Court, and a not supported hyresearch. A good part of what troubled the CourI in &mmwas the cxisteuce of racial disparities in capifal sentencing.A pair of stud~es of Georgia capital sentencing, conductedby Prof. David C. Baldus and others, dispute the pemptianthat junes are responsible for racial disparities in capital senteneing.nThese studies were at Issue in the 1987 SupremeCourt case McC[eskevS4. McCleskey, a black man,was sentenced to die for killing a white Georgia police offtcerduring an armedrohbery? McCleskey argued that the Baldusstudies proved juries were disproportionaiely likely tosentence him to die, thus denying him equal pmkection of thelaw. 56The Baldus studies show the most important factw inwhether a capital defendant lives or dies is the victim's race.Slaym of whitesare 4.3 times as likely to receive a death sentenceas slayers of blacks.57 Blacks who kill whites are evenmore likely to be senteaced to die than whites wlro killwhitess8. McCleskey's argument dl& this disparity violatesthe Constitution was never addressed, because he could notshow the Court that racial considerations contributed to hissentenceJ9While juries have somc culpqbility in the racially skewedmanner in which the death penalty is applied, this d~sparity isprimarily due to prosccutorial discretion Whereas juries are40% more likely to sentence the k~ller of a white to die thanthe killer of a black, prosecutors are 200% more likely to seekthe death sentenceagainstthe killer of a white.@Defendants have little leeway to amckpmsecutodal chargifigdecisions. Prosecutom may charge as they see fit absentpurposeful discriminatwn.fil Normally, this protects the independenceof prosecntors. However, the standards appropriatein other cases are not always appropriate in capital cases. Todate the Supreme Coml has not been willing to monitor thediscretionary decislon most responsible for racial disparit~esin capital cases: the pmecutol's charging decision. Nor havethey addressed discrimi~~atian from the bencl~.@z While theCourt has 'enamwed and channeled" the discretion of judes,state ofiiciRis may shll act as arbitrarily as ever. The d~lemrnaof persistent racial bias in the dcath penalty will remainiatraetahl~ so long as state officials retain unlim~ted discretionto choose which defendan% face a risk of death, and ill somestates, whlch ones will actually die.The Dexth-Qualified JuryRacial bias in cap~tal sentencing may be exacerbated byjury selection procedures utikpe to capital cases. In elminatmgjurors with qualms about the dealh penalty, minorities andwomen are removed at a much higher rate than are whitemales.@ The resultant jiny is not representative of the communlty,and may be seriously biased indeciding both gmlt andpunishn~ent.~~Death-qualification began as a means of controlling juryindcpendence.65 In FYlthetsuoo~~ a Illinois,66 thc Court held astate could not disqualify pntential jurors merely because they"might hesitate to return a verdict inilictmg [dcath]!'" Whilethe Court saw no problem with d~gqnalifymg jurors whowould refuse to impose death, or whose verdicts would he