BRENNAN,
J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
465 U.S. 37
Pulley v. Harris
CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 82-1095
Argued: November 7, 1983
--- Decided: January 23,
1984
JUSTICE BRENNAN, with whom
JUSTICE MARSHALL joins, dissenting.
Almost
12 years ago, in Furman v. Georgia,
408 U.S. 238"]408 U.S. 238
(1972), the Court concluded that the death
penalty, as then administered under various
state and federal statutes, constituted
[p60] a cruel and
unusual punishment prohibited by the Eighth
and Fourteenth Amendments. At that
time, the Court was convinced that death
sentences were being imposed in a manner
that was so arbitrary and capricious that no
individual death sentence could be
constitutionally justified.
[n1] Four years later, faced
with new death penalty statutes enacted by
the States of Georgia, Florida, and Texas, a
majority of the Court concluded that the
procedural mechanisms included in those
statutes provided sufficient protection to
ensure their constitutional application.
See Gregg v. Georgia, 428 U.S. 153
(1976); 408 U.S. 238 (1972), the
Court concluded that the death penalty, as
then administered under various state and
federal statutes, constituted
[p60] a cruel and
unusual punishment prohibited by the Eighth
and Fourteenth Amendments. At that
time, the Court was convinced that death
sentences were being imposed in a manner
that was so arbitrary and capricious that no
individual death sentence could be
constitutionally justified.
[n1] Four years later, faced
with new death penalty statutes enacted by
the States of Georgia, Florida, and Texas, a
majority of the Court concluded that the
procedural mechanisms included in those
statutes provided sufficient protection to
ensure their constitutional application.
See Gregg v. Georgia, 428 U.S. 153
(1976); Proffitt v. Florida, 428
U.S. 242"]428 U.S. 242 (1976);
428 U.S. 242 (1976); Jurek v. Texas,
428 U.S. 262 (1976). Thus began a
series of decisions from this Court in which,
with some exceptions, it has been assumed
that the death penalty is being imposed by
the various States in a rational and
nondiscriminatory way. Upon the available
evidence, however, I am convinced that the
Court is simply deluding itself, and also
the American public, when it insists that
those defendants who have already been
executed or are today condemned to death
have been selected on a basis that is
neither arbitrary nor capricious, under any
meaningful definition of those terms.
Moreover,
in this case, the Court concludes that
proportionality review of a death sentence
is constitutionally unnecessary. Presumably
this is so even if a comparative review of
death sentences imposed on similarly
situated defendants might eliminate some, if
only a small part, of the irrationality
[p61] that
currently surrounds the imposition of the
death penalty. Because, in my view, the
evidence available to the Court suggests
that proportionality review does serve this
limited purpose, I believe that the State of
California, through a court of statewide
jurisdiction, should be required to
undertake proportionality review when
examining any death sentence on appeal.
I
A
In
Furman v. Georgia, supra, and subsequent
orders, see, e.g., 408 U.S. 933-940
(1972), the Court invalidated all death
sentences then existing in the various
States. Although each of the five Justices
concurring in the per curiam opinion of the
Court authored a separate opinion, it has
since been the accepted holding of Furman
that, at a minimum, the death penalty cannot
"be imposed under sentencing procedures that
creat[e] a substantial risk that it [will]
be inflicted in an arbitrary and capricious
manner." Gregg v. Georgia, supra, at
188 (opinion of Stewart, POWELL, and STEVENS,
JJ.).
This was
the touchstone of Justice Stewart's concerns
in Furman:
These death sentences are cruel and
unusual in the same way that being
struck by lightning is cruel and unusual.
For, of all the people convicted of
rapes and murders . . . many just as
reprehensible as these, the petitioners
are among a capriciously selected random
handful upon whom the sentence of death
has in fact been imposed. My concurring
Brothers have demonstrated that, if any
basis can be discerned for the selection
of these few to be sentenced to die, it
is the constitutionally impermissible
basis of race. . . . I simply conclude
that the Eighth and Fourteenth
Amendments cannot tolerate the
infliction of a sentence of death under
legal systems that permit this unique
penalty to be so
[p62] wantonly and so freakishly
imposed.
408 U.S.
at 309-310 (footnotes and citations omitted).
Likewise, JUSTICE WHITE concluded that
the death penalty is exacted with great
infrequency even for the most atrocious
crimes and . . . there is no meaningful
basis for distinguishing the few cases
in which it is imposed from the many
cases in which it is not.
Id.
at 313. And, although focusing his analysis
on the equal protection concerns of the
Eighth Amendment, Justice Douglas
substantially agreed, noting that
[t]he
high service rendered by the "cruel and
unusual" punishment clause of the
Eighth Amendment is to require
legislatures to write penal laws that
are evenhanded, nonselective, and
nonarbitrary, and to require judges to
see to it that general laws are not
applied sparsely, selectively, and
spottily to unpopular groups.
Id.
at 256. See also id. at 248, n. 11,
249 (Douglas, J., concurring) ("‘A penalty .
. . should be considered "unusually" imposed
if it is administered arbitrarily or
discriminatorily'") (quoting Goldberg &
Dershowitz, Declaring the Death Penalty
Unconstitutional, 83 Harv.L.Rev. 1773, 1790
(1970)); 408 U.S. at 274-277, 291-295
(BRENNAN, J., concurring).
[n2]
These
concerns about the irrational imposition of
the death penalty were not based on abstract
speculation. Rather, they were premised on
actual experience with the administration of
the penalty by the various States. I will
not attempt at this time to summarize the
evidence available to the Court in 1972 when
Furman was decided. See, e.g., id.
at 249-252, 256-257, n. 21 (Douglas, J.,
concurring); id. at 291-295 (BRENNAN,
J., concurring); id. at 309-310
(Stewart, [p63]
J., concurring); id. at 364-369
(MARSHALL, J., concurring). Suffice it to
say that the Court was persuaded, both from
personal experience in reviewing capital
cases
[n3] and from the available
research analyzing imposition of this
extreme penalty, that the death penalty was
being administered in an arbitrary and
capricious manner.
Moreover,
this stated concern with the irrational
imposition of the death penalty did not
cease with the judgments of the Furman
Court; indeed, the same focus has been
reflected in the Court's decisions ever
since. See, e.g., Barclay v. Florida,
463 U.S. 939, 958-960 (1983) (STEVENS,
J., concurring in judgment); Zant v.
Stephens, 462 U.S. 862, 874
(1983) (characterizing Furman as
holding that "‘where discretion is afforded
a sentencing body on a matter so grave as
the determination of whether a human life
should be taken or spared, that discretion
must be suitably directed and limited so as
to minimize the risk of wholly arbitrary and
capricious action'") (quoting Gregg v.
Georgia, 428 U.S. at 189 (opinion of
Stewart, POWELL, and STEVENS, JJ.));
Eddings v. Oklahoma, 455 U.S. 104,
111 (1982) (noting that the Court "has
attempted to provide standards for a
constitutional death penalty that would
serve both goals of measured, consistent
application and fairness to the accused");
id. at 112 (noting that the Court has
"insiste[d] that capital punishment be
imposed fairly, and with reasonable
consistency, or not at all"). Hence, if any
principle is an accepted part of the Court's
death penalty decisions during the past 12
years, it is that the irrational application
of the death penalty, as evidenced by an
[p64] examination
of when the death penalty is actually
imposed, cannot be constitutionally
defended.
Even
while repeating this principle, however, the
Court since Gregg v. Georgia, supra,
and its companion cases, has allowed
executions to take place, and death rows to
expand, without fully examining the results
obtained by the death penalty statutes
enacted in response to the Furman
decision. Indeed, the Court seems content to
conclude that, so long as certain procedural
protections exist, imposition of the death
penalty is constitutionally permissible. But
a sentencer's consideration of aggravating
and mitigating circumstances, see ante
at 51-53, combined with some form of
meaningful appellate review, see ante
at 54-55, 59 (STEVENS, J., concurring in
part), does not, by itself, ensure that a
death sentence in any particular case, or
the death penalty in general, is a
constitutional exercise of the State's power.
Given the emotions generated by capital
crimes, it may well be that juries, trial
judges, and appellate courts considering
sentences of death are invariably affected
by impermissible considerations. Although we
may tolerate such irrationality in other
sentencing contexts, the premise of
Furman was that such arbitrary and
capricious decisionmaking is simply invalid
when applied to "‘a matter [as] grave as the
determination of whether a human life should
be taken or spared.'" Zant v. Stephens,
supra, at 874. As executions occur with
more frequency, therefore, the time is fast
approaching for the Court to reexamine the
death penalty, not simply to ensure the
existence of adequate procedural protections,
but more importantly to reevaluate the
imposition of the death penalty for the
irrationality prohibited by our decision in
Furman.
B
The
current evidence of discriminatory and
irrational application of the death penalty
has yet to be completely or systematically
marshaled. What evidence has been compiled,
moreover, has not been properly presented to
the Court, and [p65]
is not at issue in this case. Nevertheless,
as in other recent decisions, the Court
today evaluates the procedural mechanism at
issue -- in this case, comparative
proportionality review -- without regard to
whether the actual administration of the
death penalty by the States satisfies the
concerns expressed in Furman.
The most
compelling evidence that the death penalty
continues to be administered
unconstitutionally relates to the racial
discrimination that apparently, and perhaps
invariably, exists in its application. The
Court correctly avoids the question of
racial discrimination as not properly
presented in this case. See ante at
41, n. 4 (noting that the Court of Appeals "remanded
. . . for a possible evidentiary hearing on
Harris' claim that the death penalty was
being discriminatorily administered in
California").
[n4] But the issue cannot be
avoided much longer, as decisions of the
lower federal courts are beginning to
recognize. See, e.g., Spencer v. Zant,
715 F.2d 1562, 1578-1583 (CA11 1983),
rehearing en banc pending, No. 82-8408;
Ross v. Hopper, 716 F.2d 1528, 1539
(CA11 1983). See also Stephens v. Kemp,
464 U.S. 1027 (1983) (stay of
execution granted pending rehearing en banc
in Spencer).
Furthermore, the scholarly research
necessary to support a claim of systemic
racial discrimination is currently being
pursued, and the results of that research
are being compiled into a rapidly expanding
body of literature. See, e.g.,
[p66] D. Baldus,
G. Woodworth, & C. Pulaski, The Differential
Treatment of White and Black Victim Homicide
Cases in Georgia's Capital Charging and
Sentencing Process: Preliminary Findings
(June 1982) (unpublished), reprinted in App.
G to Pet. for Cert. in Smith v. Balkcom,
O.T. 1981, No. 6978, Exh. E, Appendix D (discrimination
by race of victim); Bowers & Pierce,
Arbitrariness and Discrimination under Post-Furman
Capital Statutes, 26 Crime & Delinquency 563
(1980) (discrimination by race of defendant
and race of victim); L. Foley, Florida After
the Furman Decision: Discrimination
in the Processing of Capital Offense Cases (unpublished),
reprinted in App. to Application for Stay in
Sullivan v. Wainwright, O.T. 1983,
No. A-409, Exh. 33 (discrimination by race
of victim); Foley & Powell, The Discretion
of Prosecutors, Judges, and Juries in
Capital Cases, 7 Crim.Just.Rev. 16 (Fall
1982) (discrimination by race of victim); S.
Gross & R. Mauro, Patterns of Death: An
Analysis of Racial Disparities in Capital
Sentencing and Homicide Victimization
(Oct.1983) (unpublished), reprinted in App.
to Application for Stay in Sullivan v.
Wainwright, supra, Exh. 28 (discrimination
by race of victim); Jacoby & Paternoster,
Sentencing Disparity and Jury Packing:
Further Challenges to the Death Penalty, 73
J.Crim.L. & Criminology 379 (1982) (discrimination
by race of victim); Kleck, Racial
Discrimination in Criminal Sentencing: A
Critical Evaluation of the Evidence with
Additional Evidence on the Death Penalty, 46
Am.Soc.Rev. 783 (1981); Radelet, Racial
Characteristics and the Imposition of the
Death Penalty, 46 Am.Soc.Rev. 918 (1981) (discrimination
by race of victim); M. Radelet & G. Pierce,
Race and Prosecutorial Discretion in
Homicide Cases (1983) (presented at the
Meetings of the American Sociological
Association, Detroit, Mich., Sept. 4, 1983),
reprinted in App. to Application for Stay in
Sullivan v. Wainwright, supra, Exh.
34 (discrimination by race of defendant and
race of victim); Riedel, Discrimination in
the Imposition of the Death Penalty: A
Comparison of the [p67]
Characteristics of Offenders Sentenced Pre-Furman
and Post-Furman, 49 Temp.L.Q. 261
(1976); Zeisel, Race Bias in the
Administration of the Death Penalty: The
Florida Experience, 95 Harv.L.Rev. 456
(1981) (discrimination by race of defendant
and race of victim). See also C.
Black, Capital Punishment: The Inevitability
of Caprice and Mistake (2d ed.1981).
Although research methods and techniques
often differ, the conclusions being reached
are relatively clear: factors crucial, yet
without doubt impermissibly applied, to the
imposition of the death penalty are the race
of the defendant and the race of the victim.
Nor do I
mean to suggest that racial discrimination
is the only irrationality that infects the
death penalty as it is currently being
applied. Several of the studies cited above
suggest that discrimination by gender,
e.g., Foley, supra; Foley &
Powell, supra, by socioeconomic
status, e.g., Foley & Powell,
supra, and by geographical location
within a State, e.g., Bowers &
Pierce, supra; Foley & Powell,
supra, may be common. I will not attempt
at this time to expand upon the conclusions
that these studies may dictate. But if the
Court is going to fulfill its constitutional
responsibilities, then it cannot sanction
continued executions on the unexamined
assumption that the death penalty is being
administered in a rational, nonarbitrary,
and noncapricious manner. Simply to assume
that the procedural protections mandated by
this Court's prior decisions eliminate the
irrationality underlying application of the
death penalty is to ignore the holding of
Furman and whatever constitutional
difficulties may be inherent in each State's
death penalty system.
II
The
question directly presented by this case is
whether the Federal Constitution requires a
court of statewide jurisdiction to undertake
comparative proportionality review before a
death sentence may be carried out. The
results obtained by many States that
undertake such proportionality review,
[p68] pursuant to
either state statute or judicial decision,
convince me that this form of appellate
review serves to eliminate some, if only a
small part, of the irrationality that
infects the current imposition of death
sentences throughout the various States. To
this extent, I believe that comparative
proportionality review is mandated by the
Constitution.
A
Some
forms of irrationality that infect the
administration of the death penalty --
unlike discrimination by race, gender,
socioeconomic status, or geographic location
within a State -- cannot be measured in any
comprehensive way. That does not mean,
however, that the process under which death
sentences are currently being imposed is
otherwise rational or acceptable. Rather,
for any individual defendant, the process is
filled with so much unpredictability that "it
smacks of little more than a lottery system,"
Furman v. Georgia, 408 U.S. at 293
(BRENNAN, J., concurring), under which being
chosen for a death sentence remains as
random as "being struck by lightning," id.
at 309 (Stewart, J., concurring).
Chief
among the reasons for this unpredictability
is the fact that similarly situated
defendants, charged and convicted for
similar crimes within the same State, often
receive vastly different sentences.
Professor John Kaplan of the Stanford Law
School has summarized the dilemma:
The problem [of error in imposing
capital punishment] is much more serious
if we consider the chances of error in
the system to be more than the execution
of someone who is completely innocent --
the ultimate horror case. Though
examples of victims of mistaken identity
are sometimes found on death row, the
far more common cases fall into two
types. In one, the recipient of the
death penalty is guilty of a crime, but
of a lesser offense, for which capital
punishment is not in theory
available....
The second type of error in capital
punishment occurs when we execute
someone whose crime does not seem so
[p69]
aggravated when compared to those of
many who escaped the death penalty. It
is in this kind of case -- which is
extremely common -- that we must worry
whether, first, we have designed
procedures which are appropriate to the
decision between life and death and,
second, whether we have followed those
procedures.
Kaplan,
The Problem of Capital Punishment, 1983
U.Ill.L.Rev. 555, 576. Comparative
proportionality review is aimed at
eliminating this second type of error.
[n5] [p70]
B
Disproportionality among sentences given
different defendants can only be eliminated
after sentencing disparities are identified.
And the most logical way to identify such
sentencing disparities is for a court of
statewide jurisdiction
[p71] to conduct comparisons between
death sentences imposed by different judges
or juries within the State. This is what the
Court labels comparative proportionality
review. See ante at 42-44. Although
clearly no panacea, such review often serves
to identify the most extreme examples of
disproportionality among similarly situated
defendants. At least to this extent, this
form of appellate review serves to eliminate
some of the irrationality that currently
surrounds imposition of a death sentence. If
only to further this limited purpose,
therefore, I believe that the Constitution's
prohibition on the irrational imposition of
the death penalty requires that this
procedural safeguard be provided.
Indeed,
despite the Court's insistence that such
review is not compelled by the Federal
Constitution, over 30 States now require,
either by statute or judicial decision, some
form of comparative proportionality review
before any death sentence may be carried
out.
[n6] By itself, this should
weigh heavily on the side of requiring such
appellate review. Cf. Enmund v. Florida,
458 U.S. 782, 788-796 (1982); 458
U.S. 782, 788-796 (1982); Coker v.
Georgia, 433 U.S. 584, 593-596
(1977). In addition, these current practices
establish beyond dispute that such review
can be administered without much difficulty
by a court of statewide jurisdiction in each
State.
Perhaps
the best evidence of the value of
proportionality review can be gathered by
examining the actual results obtained in
those States which now require such review.
For example, since 1973, the statute
controlling appellate review of death
sentences in the State of Georgia has
required that [p72]
the Supreme Court of Georgia determine
[w]hether
the sentence of death is excessive or
disproportionate to the penalty imposed
in similar cases, considering both the
crime and the defendant.
Ga.Code
Ann. § 17-10-35(c)(3) (1982). See ante
at 43, n. 7; Gregg v. Georgia, 428
U.S. at 166-168, 198, 204-206 (opinion of
Stewart, POWELL, and STEVENS, JJ.). Pursuant
to this statutory mandate, the Georgia
Supreme Court has vacated at least seven
death sentences because it was convinced
that they were comparatively
disproportionate. See, e.g., High v.
State, 247 Ga. 289, 297, 276 S.E.2d 5,
14 (1981) (death sentence disproportionate
for armed robbery and kidnaping); Hall v.
State, 241 Ga. 252, 258-260, 244 S.E.2d
833, 838-839 (1978) (death sentence
disproportionate for felony murder when
codefendant received life sentence in
subsequent jury trial); Ward v. State,
239 Ga. 205, 208-209, 236 S.E.2d 365, 368
(1977) (death sentence disproportionate for
murder when defendant had received life
sentence for same crime in previous trial);
Jarrell v. State, 234 Ga. 410,
424-425, 216 S.E.2d 258, 270 (1975) (death
sentence disproportionate for armed robbery);
Floyd v. State, 233 Ga. 280, 285, 210
S.E.2d 810, 814 (1974) (same); Gregg v.
State, 233 Ga. 117, 127, 210 S.E.2d 659,
667 (1974) (same), aff'd on other grounds,
428 U.S. 153 (1976); Coley v.
State, 231 Ga. 829, 835-836, 204 S.E.2d
612, 616-617 (1974) (death sentence
disproportionate for rape). Cf. Hill v.
State, 237 Ga. 794, 802-803, 229 S.E.2d
737, 743 (1976) (death sentence not
disproportionate even though unclear which
defendant actually committed murder;
sentence later commuted to life imprisonment
by Board of Pardons and Paroles).
Similarly, other States that require
comparative proportionality review also have
vacated death sentences for defendants whose
crime or personal history did not justify
such an extreme penalty. See, e.g., Henry
v. State, 278 Ark. 478, 488-489, 647 S.W.2d
419, 425 (1983); Sumlin v. State, 273
Ark. 185, 190, 617 S.W.2d 372, 375 (1981);
Blair v. [p73]
State, 406 So.2d 1103, 1109 (Fla.1981);
McCaskill v. State, 344 So.2d 1276,
1278-1280 (Fla.1977); People v. Gleckler,
82 Ill.2d 145, 161-171, 411 N.E.2d 849,
856-861 (1980); Smith v. Commonwealth,
634 S.W.2d 411, 413-414 (Ky.1982); State
v. Sonnier, 380 So.2d 1, 5-9 (La.1979);
Coleman v. State, 378 So.2d 640,
649-650 (Miss.1979); State v. McIlvoy,
629 S.W.2d 333, 341-342 (Mo.1982); Munn
v. State, 658 P.2d 482, 487-488 (Okla.Crim.App.1983).
[n7]
What
these cases clearly demonstrate, in my view,
is that comparative proportionality review
serves to eliminate some, if only a small
part, of the irrationality that currently
infects imposition of the death penalty by
the various States. Before any execution is
carried out, therefore, a State should be
required under the Eighth and Fourteenth
Amendments to conduct such appellate
review. The Court's decision in Furman,
and the Court's continuing emphasis on
meaningful appellate review, see, e.g.,
ante, p. 54 (STEVENS, J., concurring in
part); Barclay v. Florida, 463 U.S.
at 988-989 (MARSHALL, J., dissenting),
require no less.
III
The
Court today concludes that our prior
decisions do not mandate that a comparative
proportionality review be conducted before
any execution takes place. Then, simply
because the California statute provides both
a list of "special circumstances" or "factors"
that a jury must find before imposing
[p74] a death
sentence and judicial review of those
findings, the Court upholds the California
sentencing scheme. At no point does the
Court determine whether comparative
proportionality review should be required in
order to ensure that the irrational,
arbitrary, and capricious imposition of the
death penalty invalidated by Furman
does not still exist. Even if I did not
adhere to my view that the death penalty is
in all circumstances cruel and unusual
punishment, I could not join in such
unstudied decisionmaking.
I
dissent.
*****
The decisive grievance of the opinions .
. . is that the present system of
discretionary sentencing in capital
cases has failed to produce evenhanded
justice; . . . that the selection
process has followed no rational pattern.
408 U.S.
at 398-399 (BURGER, C.J., dissenting).
I
need not restate the facts and figures
that appear in the opinions of my
Brethren. Nor can I "prove" my
conclusion from these data. But, like my
Brethren, I must arrive at judgment; and
I can do no more than state a conclusion
based on 10 years of almost daily
exposure to the facts and circumstances
of hundreds and hundreds of federal and
state criminal cases involving crimes
for which death is the authorized
penalty.
Id.
at 313.
the district court should, if it becomes
necessary, provide an opportunity to
develop the factual basis and arguments
concerning [Harris'] race discrimination
and gender discrimination claims.
692 F.2d
1189, 1197-1199 (CA9 1982). Harris is
therefore entitled on remand to develop the
evidence and arguments essential to an
adequate review of these claims. At the same
time, Harris made no showing in support of
his wealth and age discrimination claims;
the Court of Appeals therefore refused to
require an evidentiary hearing or further
consideration of these alleged bases for
discrimination. Id. at 1199.
For
example, Professor Kaplan has focused his
comments on the execution of John
Spinkellink (spelling of this name varies):
As
I read the record, he was probably
guilty of voluntary manslaughter, or at
most second-degree murder. He was a
drifter who killed another drifter who
had sexually assaulted him. Although he
received capital punishment in Florida,
in California most district attorneys
would probably have been happy to accept
a plea to second-degree murder in such a
case.
Kaplan,
1983 U.Ill.L.Rev. at 576. See Spinkellink
v. Wainwright, 578 F.2d 582, 586, n. 3
(CA5 1978); Spinkellink v. State, 313
So.2d 666, 668 (Fla.1975). Justice Ervin of
the Supreme Court of Florida, writing in
dissent, explained the underlying facts that
support Professor Kaplan's conclusions:
In
this case, it appears that [Spinkellink],
at the time of the homicide, was a 24-year-old
drifter who picked up Szymankiewicz, a
hitchhiker. Both had criminal records
and both were heavy drinkers.
Szymankiewicz, the victim in this case,
was a man of vicious propensities who
boasted of killings and forced [Spinkellink]
to have homosexual relations with him. [Spinkellink]
discovered that Szymankiewicz had "relieved
him of his cash reserves."
It
was under these conditions that [Spinkellink]
returned to the motel room where the
homicide occurred. [Spinkellink]
testified he shot Szymankiewicz in self-defense.
Evidence to the contrary was only
circumstantial. In fact, only through
such evidence was it possible to infer
the crime was premeditated and different
from [Spinkellink's] direct testimony
that he shot Szymankiewicz in self-defense.
The reasoning of this Court on the
suddenness in which premeditation may be
formed is suspect and allowed the
prosecution undue latitude to readily
shift from the theory of felony murder
to premeditated murder.
It
does not appear to me that, in this
situation, there was sufficient
certainty of premeditated guilt and
heinousness to warrant the death
penalty. When the nature of the relation
between [Spinkellink] and Szymankiewicz
is taken into account, along with the
viciousness of the victim's character
and this theft of [Spinkellink's] money,
it is obvious that hostility existed
between them that could have produced a
mortal encounter that involved self-defense
shooting.
*
* * *
Truly characterized, the sentencing to
death here is an example of the exercise
of local arbitrary discretion. The two
actors in the homicide were
underprivileged drifters. Their surnames,
Spinkellink and Szymankiewicz, were
foreign and strange to the Tallahassee
area. They had no family roots or
business connections here. All of the
ingredients were present for the
exercise of invidious parochial
discrimination in the sentencing process
which the plural opinions of the
majority in Furman condemned. The
result here is an old story, often
repeated in this jurisdiction where the
subconscious prejudices and local mores
outweigh humane, civilized understanding
when certain segments of the population
are up for sentencing for murder.
Id.
at 673-674.
Others
characterize the December, 1982, execution
of Charles Brooks, Jr., as inexcusably
aberrational. In particular, it is alleged
that the prosecution in Brooks' case failed
to prove whether he or his accomplice -- one
Woodrow Loudres, who eventually obtained a
40-year sentence in a plea bargain -- fired
the fatal shot. Indeed, before Brooks was
executed, his prosecutor joined those
seeking to stay his execution. See
Goodpaster, Judicial Review of Death
Sentences, 74 J.Crim.L. & Criminology 786,
786-787 (1983); Los Angeles Times, Dec. 6,
1982, p. 9, col. 1; Los Angeles Daily
Journal, Dec. 8, 1982, p. 7, col. 1. See
also Brooks v. Estelle, 459 U.S. 1061,
1063 (1982) (BRENNAN, MARSHALL, and STEVENS,
JJ., dissenting from denial of stay);
Brooks v. Estelle, 697 F.2d 586, 588
(CA5 1982) (per curiam).
Although
the Court today holds that the States are
not constitutionally compelled to conduct
comparative proportionality reviews, each
State of course remains free to continue the
practice.
