Struck by Lightning: Walker v. Georgia and Louisiana's Proportionality Review of Death Sentences

Southern University Law Review, Forthcoming 2010

33 Pages Posted: 22 Jan 2009 Last revised: 3 Mar 2010

Bidish Sarma

University of California, Berkeley School of Law; The Justice Center's Capital Appeals Project

Robert J. Smith

University of North Carolina School of Law

G. Ben Cohen

Date Written: January 19, 2009


The Louisiana Supreme Court conducts a comparative case proportionality review of each Louisiana death sentence to ensure that the punishment is not excessive considering both the crime and the criminal. The Court underscores that the federal constitution does not compel its practice. This article questions the Louisiana Supreme Court’s understanding of the Constitution and demonstrates that its proportionality review is constitutionally insufficient.

First, we challenge the proposition that the Eighth and Fourteenth Amendments do not require Louisiana to conduct a meaningful proportionality review. Last term, the United States Supreme Court denied certiorari in Walker v. Georgia. In that case, the Petitioner claimed that Georgia's death penalty scheme violates the Constitution because its inadequately-performed proportionality review – along with the absence of other internal controls – creates an intolerable risk of arbitrariness. Justice Stevens penned a statement concerning the denial of certiorari in which he stated that Petitioner failed to preserve the issue, but emphasized that the “likely result” of an inadequate review would be “the arbitrary or discriminatory imposition of death sentences in contravention of the Eighth Amendment.” Louisiana’s death penalty scheme – which was modeled after Georgia’s – presents the same question that the Petitioner raised in Walker. If Georgia’s scheme is compelled by the Constitution, then Louisiana's scheme almost certainly depends on meaningful proportionality review to ensure its constitutionality.

Second, we aim to demonstrate that the Louisiana Supreme Court's proportionality review is powerfully inadequate. The Louisiana Supreme Court has only reversed one death sentence for excessiveness. Though it has reviewed at least 200 capital cases, it has not reversed a single death sentence in more than twenty-five years. One possible conclusion is that Louisiana’s scheme calibrates death-sentencing so carefully that excessive death sentences simply do not exist. The better explanation, however, is that the Louisiana Supreme Court’s proportionality review fails to gauge whether death sentences are arbitrary or excessive. As discussed below, ample evidence supports this conclusion.

The Louisiana Supreme Court does not compare the death sentence at bar to other first-degree murder cases where death sentences were not imposed. Nor does it compare mitigating evidence across cases when it determines whether an appellant’s death sentence is proportionate. The Court ignores geographic disparities, and does not carefully consider the potentially pernicious influence of other arbitrary factors, such as the race of the victim and the race of the defendant. In short, Louisiana’s proportionality review consistently fails in practice to ensure that any particular death sentence is neither arbitrary nor excessive.

We first review the United States Supreme Court’s decisions in Furman v. Georgia and Gregg v. Georgia, which set the jurisprudential backdrop for determining whether proportionality review is required, and what type of review is adequate to stamp out arbitrariness in capital sentencing. Next, we discuss Pulley v. Harris (the fall of proportionality review) and Justice Stevens’s statement in Walker (proportionality review’s possible revival). From there, we consider the history of proportionality review in Louisiana and track its devolution. Using publicly accessible information, we then demonstrate that the Louisiana Supreme Court's current proportionality review is inadequate to protect against arbitrary capital sentencing. Finally, we call upon the Louisiana Supreme Court to fix its broken proportionality review.

Keywords: Death Penalty, Walker v. Georgia, Louisiana Supreme Court, Proportionality Review

JEL Classification: K14

Suggested Citation

Sarma, Bidish and Smith, Robert J. and Cohen, G. Ben, Struck by Lightning: Walker v. Georgia and Louisiana's Proportionality Review of Death Sentences (January 19, 2009). Southern University Law Review, Forthcoming 2010. Available at SSRN:

Bidish Sarma (Contact Author)

University of California, Berkeley School of Law ( email )

391 Simon Hall
UC Berkeley
Berkeley, CA 94720
United States

The Justice Center's Capital Appeals Project ( email )

636 Baronne St.
New Orleans, LA 70113
United States

Robert J. Smith

University of North Carolina School of Law ( email )

102 Ridge Road
Chapel Hill, NC NC 27514
United States

No contact information is available for G. Ben Cohen

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