The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California
39 Pages Posted: 11 Sep 2015 Last revised: 2 Feb 2016
Date Written: December 24, 2015
In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness. The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences. In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes. Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue. In Pulley, the Court held that comparative proportionality review of death sentences was not constitutionally required in a state's death penalty scheme unless that scheme was "so lacking in other checks on arbitrariness" that it could not otherwise pass constitutional muster. The Court acknowledged, however, that some form of meaningful appellate review was required. Using California as an object lesson, this article examines both aspects of the Court's opinion: what would make a state scheme so lacking in checks on arbitrariness as to require comparative proportionality review; and what would constitute meaningful appellate review by a court which eschews comparative proportionality review. The article argues that the California death penalty scheme is that scheme imagined in Pulley — a scheme with virtually no checks on arbitrariness, producing arbitrary sentences and arbitrary executions, and, therefore, a scheme where comparative proportionality should be required. The article also argues that, in California, there is no meaningful review of death sentences at all — not once in 593 direct appeals in death penalty cases has the California Supreme Court set aside a death sentence on the ground that it was disproportionate, excessive or otherwise aberrant. Although California is, in this respect, is a distinct outlier, it is not alone among the states in ignoring the Furman requirements. The lesson from California is that the Supreme Court's "meaningful review" of state schemes is long overdue.
Keywords: death penalty, capital punishment, meaningful appellate review, comparative proportionality review, arbitrariness, disproportionate, sentencing, Eighth Amendment, Pulley v. Harris, California
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