The Eighth Amendment Power to Discriminate

95 Washington Law Review (Forthcoming)

58 Pages Posted: 1 Oct 2019

See all articles by Kathryn Miller

Kathryn Miller

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: September 19, 2019


For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia. While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion. This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it. It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency. Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

Keywords: juror discretion, individualized sentencing requirement, jury, mitigation, penalty phase, capital punishment, death penalty, jury instructions, Eighth Amendment, individualization, consistency, mitigating circumstances, racial discrimination, death qualification, Kansas v. Carr, capital trials

Suggested Citation

Miller, Kathryn, The Eighth Amendment Power to Discriminate (September 19, 2019). 95 Washington Law Review (Forthcoming) , Available at SSRN: or

Kathryn Miller (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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New York, NY 10003
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