Struck by Lightning: Walker v. Georgia and Louisiana's Proportionality Review of Death Sentences
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
January 19, 2009
Southern University Law Review, Forthcoming 2010
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.
Number of Pages in PDF File: 33
Keywords: Death Penalty, Walker v. Georgia, Louisiana Supreme Court, Proportionality Review
JEL Classification: K14
Date posted: January 22, 2009 ; Last revised: March 3, 2010