Contradiction, Coherence, and Guided Discretion in the Supreme Court's Capital Sentencing Jurisprudence
Arizona State University - College of Law
American Criminal Law Review, Vol. 40, p. 1151, 2003
In the wake of Furman v. Georgia in 1972, many states revised their capital sentencing statutes to address the problem of arbitrary sentencing. In a series of decisions reviewing the new statutes, the Supreme Court determined that asymmetrical 'guided discretion' strikes the appropriate balance between consistency and individualized consideration in capital sentencing. On this approach, legislatures specify by statute the factors relevant to determining whether a defendant deserves the death penalty, but juries must be free to consider any factor that might militate in favor of a lesser sentence. At least two Supreme Court justices have characterized guided discretion as a contradiction in terms. Justice Antonin Scalia argued that open-ended mitigation destroys any hope of sentencing consistency, is not a constitutional requirement, and therefore should be abandoned by the Court. Justice Harry Blackmun argued that consistency and individuation are constitutional commitments that can neither be reconciled nor abandoned, so the Court should invalidate the death penalty as unworkable. This essay explores the possibility that the so-called contradiction in capital sentencing can be reconciled in terms of several well-established values of legal liberalism. Although the Supreme Court has failed to articulate a coherent rationale for its approach to capital punishment, this does not establish that no such rationale is available.
Number of Pages in PDF File: 44
Keywords: Death penalty, guided discretionAccepted Paper Series
Date posted: August 31, 2009
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