american criminal law review

VOLUME 26

SPRING 1989

NUMBER 4

AMERICAN CRIMINAL LAW REVIEW

BICENTENNIAL COMMEMORATION OF THE BILL OF RIGHTS ARTICLES AND ESSAYS

Published by the Georgetown University Law CenIer

THE CRUEL AND UNUSUAL PUNISHMENT AND EXCESSIVE FINES CLAUSES The eighth amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 1 'The controversial and emotionally charged nature of the death penalty has focused eighth amendment debate on the "cruel and unusual punishments clause. ;'2 Inco.ntrast, the "excessive fines" clause has been moribund. Recently, however, that clause has shown signs of life' and promises to play an increasingly importa.nt role in eighth amendment jurisprudence. This Essay examines the excessive fines and cruel and unusual punishment clauses of the eighth amendment. Part I of the Essa.y reviews the events that led to the inclusion of the prohibition against cruel and unusual punishments in the Bill of Rights. Part II traces the post-constitutional development of the right at common law. Finally, Part III discusses the history and development of the excessive fines clause and concludes with a prospective look at the future of the eighth amendment. 1.

THE EARLY HISTORY OF THE EIGHTH AMENDMENT

The eighth amendment is a product of the language of the English Bill of Rights' and the principles of the Magna Carta.' Although the history of this 1. U.S. CONST. amend. VIII. The Supreme Court has held the cruel and unusual punishments clause applicable to the states through the fourteenth amendm.ent. Robinson v. California, 370 U,S. 660, 666·67 (1962). The Court has declined to determine whether the excessive fines clause is similarly incorporated. Browning~Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2921 n.22 (1989). 2. Indeed, the Court has decided a multitude of death penalty cases by a bare majority. See, e.g., Penry v, Lynaugh, 109 S. Ct. 2934 (1989) (five~four vote holding the execution of mildly retarded defendant constitutionally permissible); Stanford v, Kentucky, 109 S. Ct. 2969 (1989) (five~four vote on permissibility of executing defendants aged 16 or J7 at time of crime); South Carolina v, Gathers, 109 S. Ct. 2207 (1989) (five~four vote refusing to overrule decision in Booth v, Maryland, 482 U.S. 496 (1987), that use of victim~impact statements was unconstitutional). Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), the landmark ruling that overturned all exist~ .~ _.~,_,_,_mg,.,J"~c?-11LRl;!Dalt'y."..$J.allJttiJi,~al$.Q"wJ}._Ld~.cjdtd_j)Y_.a--Y.Dj:.e_J)fJiY.e~lo",lDllL~with.-.-eY~r-y--.--Jlistice,,-On~,1he~.~,,_.~

Court authoring an opinion. Numerous other important eighth amendment opinions have commanded only a plurality of the Justices. E,g., Thompson v. Oklahoma, 108S, Ct. 2687 (1988) (plurality opinion) (unconstitutional to execute offender younger than age 16 at time of commission of crime); Gregg v. Geor'gia, 428 U.S, 153 (1976) (pluralitY opinion) (death penalty not per se unconstitutional); Powell v. Texas, 392 U,S. 514 (1968) (plurality opinion) (alcoholism not punishable, but public drunkenness may be criminalized); Trop v. Dulles, 356 U.S, 86 (1958) (plurality opinion) (denaturalization excessive punishment for crime of desertion). 3. See Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2915 (1989) (excessive fines clause does not apply to punitive-damages awards in cases involving only private parties). For an extensive discussion of Browning-Ferris's impact on the excessive fines clause see infra notes 263-82 and accompanying text. 4. The relevant provision in the English Bill of Rights reads: "excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted." 1 W. & M.

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language and the principles on which it is based are well-known,' the precise historical events that stimulated its codification are less readily ascertainable. The English Bill of Rights, written upon the accession of William and Mary to the throne at the conclusion of the Glorious Revolution of 1688-1689, was intended to curb the judicial excesses that typified the reigns of Charles II and James 11.' Historians regard its adoption as "a reaction either to the 'Bloody Assize,' the treason trials conducted by Chief Justice Jeffreys in 1685 after the abortive rebellion of the Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year. "8 The Bloody Assizes were a judicial reign of terror resulting in the political execntion of hundreds of Englishmen in the wake of Lord Monmouth's failed coup:' When the ordeal ended, scores had been executed and 1,260 were awaiting the hangman in three countries. To be absent from home during the uprising was evidence of guilt. Mere death was considered much too mild for the villagers and farmers rounded up in these raids. The directions to a high sheriff were to provide an ax, a cleaver, "a furnace or cauldren to boil their heads and quarters, and soil to boil therewith, half a bushel to each traitor, and tar to tar them with, and a sufficient number of spears and poles to fix their heads and quarters" along the highways. One could have crossed a good part of northern England by their guidance. lO As barbaric as the Bloody Assizes were, some believe the prohibition against cruel and unusual punishments was instead a reaction to a single event: the prosecution of Titus Oates." Oates, a minister of the Church of England, had been tried and convicted of perjury for proclaiming the existence of a plot to 2, ch. 2 (1689). This language was incorporated almost verbatim into Section 9 of the Virginia Declaration of Rights of 1776. In turn, the Virginia Declaration was the source of the eighth amendment. See Solem v. Helm, 463 U.S. 277, 285 n.10 (1983); Ingraham v. Wright, 430 U.S. 651, 664 (1977); Furman v. Georgia, 408 U.S. 238. 243 (1972) (Douglas, J., concurring). 5. The English Bill of Rights "was a restatement of English principles-the principles of Magna Charta ... and the Revolution of 1688." A. NEVINS, THE AMERICAN STATES DURING AND AFTER THE REVOLUTION 146 (1924), quoted in Solem v. Helm, 463 U.S. at 285 n.lO. 6. See Ingraham v. Wright, 430 U.S. 651. 664 (1977); Gregg v. Georgia, 428 U.S. 153, 169 (1976) (plurality opinion). 7. See Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2928 (1989) (O'Connor, J., concurring in part and dissenting in part); Ingraham v. Wright, 430 U.S. at 664. 8. Ingraham v. Wright, 430 U.S. at 664 (footnotes omitted). 9. I. BRANT, THE BILr: OF RIOHTS 154 (1965). 10. ld. at 155, quoted in Furman v. Georgia, 408 U.S. at 254 (Douglas, J., concurring). As Justice MarshaU's often~cited history of the eighth amendment notes. "most historians believe that it was this event that finally spurred the adoption of the English Bill of Rights containing the progenitor of our prohibition against cruel and unusual punishments," 2 J. STORY, ON THE CON~ STITUTION § 1903, at 650 (5th ed. 189I), quoted in Furman v. Georgia, 408 U.S. at 317 (Marshall, J., concurring). 1 L See Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original Meaning, 57 CAlIF. L. REV. 839, 857-60 (1969).

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assassinate King Charles 11. 12 He was sentenced to life imprisonment, quarterly whippings and pillorings for the rest of his life, defrocking, and a fine of 2,000 marks." Oates appealed his sentence to Parliament. 14 Although the House of Lords rejected his plea, a minority of its members found "that the said judgments are barbarous, inhuman, and unchristian; and there is no precedents to warrant the punishments of whipping and committing to prison for life, for the crime of perjury; which yet were but part of the punishments inflicted upon him."15 The minority concluded that the "cruel, barbarous, and illegal judgments [should] ... be reversed" under the principle "that excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted." 16 The House of Commons agreed with the dissenting Lords.!' Whatever its historical stimulus, the English Bill of Rights embodied a set of principles that already had reached colonial shores. The Body of Liberties for the Massachusetts Bay Colony, written in 1641, stipulated that "[flor bodily punishments we allow amongst us none that are inhumane, Barbarous or cruel." 18 The colonial hostility toward cruel and unusual punishments appears to be as broad as it was longstanding. At the time of the American Revolution, nine state constitutions proscribed such punishments.!' Additionally, a similar prohibition was included in legislation enacted under the Articles of Confederation. 2O These factors contributed to the generally noncontroversial status of the amendment during congressional debates on the Bill of Rights. 12. Furman v. Georgia, 408 U.S. at 318 n.13 (Marshall, J. t concurring) (citing Granucci, supra note 11, at 857-59),

13. [d, The entire text of the judgment against Oates is set out in the margin of Justice White's dissenting opinion in Weems v. United States, 217 U.S. 349, 391 n.1 (1910). 14. Granucci,

supra note 11, at 858.

15. 10 T. HOWELL, A COMPLETE COLLECTION OF STATE TRIALS AND PROCEEDINGS FOR HIGH TREASON AND OTHER eIMES AND MISDEMEANORS FROM THE EARLIEST PERIOD TO THE YEAR 1783, at

1325 (1816) (dissenting statement of minority of House of Lords), quoted in Weems v. United States, 217 U.S. at 391~92 n.l (White, J., dissenting).

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18. See Colonial Laws of Massachusetts 43 (1889), quoted in In re Kemmler, 136, U.S. 436, 446, n.l (1889); 1 B. SCHWARTZ, THE ROOTS OF :THE BILL OF RIGHTS 71, 77 (1971), quoted in Furman v. Georgia, 408 U.S. 316 n.6 (Marshall, J., concurring). Although, the BodY of Liberties dIsfavored torture, It did not regard that practice as categorically "inhumane, Barbarous, or cruel" : No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and sufficient evidence to be guilty. After which if the cause be of that nature, That it is very apparent there be other conspiratours, or confederates with him, Then he may be tortured, yet not with such Tortures as be Barbarous and inhumane. Colonial' Laws of Massachusetts, supra, at 43, quoted in L. FRIEDMAN, A HISTORY OF AMERICAN

LAW 70 (2d ed. 1985). 19. Those states were Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, South Carolina, and Virginia. Furman v. Georgia, 408 U.S. at 243 & n.4, 244 & n.5 (Douglas, J., concurring). 20. [d. at 244 & n.6.

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What debate thele was sheds mote light on whose conduct the constitution was intended to regulate than it does about the substantive content of that regulation. Apart from general discussion about the absence of a bill of rights in the original Constitution, the lack of a cruel and unusual punishments clause "was alluded to, so far as we know, in the debates of only two of the state ratifying conventions."" Subsequently, as the Supreme Court itself commented earlier this century, the eighth amendment "received very little debate" in the first Congress. 22 In the Massachusetts ratification debates, Representative Hohnes expressed the colonial fear of legislative tyranny: What gives an additional glare of horror to these gloomy circumstances is the consideration, that Congress have to ascertain, point out, and determine, what kind of pUnishments shall be inflicted on persons convicted of crimes. They are nowhere restrained from inventing the most cruel and unheard"of punishments, aild annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amoilgst the most mild instruments of their discipline. 23 This fear was reiterated by Patrick Henry at the Virginia ratifying convention. After providing a litany of crimes for which Congress could impose punishment, Henry warned: But when we come to punishments no latitude ought to be left, nor dependence put on the virtue of representatives. What says our [Virginia] bill of rights?-"that excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Are you not, therefore, ilow calling on those gentlemen who are to compose Congress, to ... define punishment without this control? Will they find sentiments there similar to this bill of rights? You let them loose; you do more-you depart from the genius of your country.... . .. What has distinguished our ancestors?-That they would not admit of tort,!res, or cruel and barbarous punishment. 24 The eighth amendment received virtually no attention duriilg the House debate.son the Bill of Rights, and what attention it received was hardly passionate. Yet this lack of debate may indicate more about the first Congress' amendment process than about the eighth amendment itself. The earlier de" bates Oil the Bill of Rights during the June 1789 legislative session had been 21. 'Id. at 258 (Brennan, J" concurring).

22. Weems v. UiIhed States, 217 U.S. at 368. 23. 2 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE AOOPTION OF THE FEDERAl, CONSTITUTION 111 (2d ed. 1876) [hereinafter ELLIOT'S DEBATES], quoted in Furman v. Georgia, 408 U.S. ,at· 258-59 (Brennan, J.; concurring) (emphasis omitted). 24. 3 ELLIOT'S DEBATES, supra note 23, at 447-48, quoted in Furman N. Georgia, 408 U.S. at 259-60 (Brennan, J., concurring).

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acrimonious. Opponenis of the amendments complained that the debates were sidetracking the House from more pressing matters. As the legislators moved deeper into the amendment process, however, they became progressively mOre efficient and the comments on proposed amendments progressively less expansive.

The eighth amendment came before the floor of the House on August 17, 1789-the Monday of the second week of debate on the amendments. By this time, the wearied representatives had a clear idea of where each of them stood on the Bill of Rights. The amendment was summarily debated: [The committee] then proceeded to the sixth clause of the fourth proposition [the eighth amendment], in these words, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Mr. SMITH, of South Carolina, objected to the words "nor cruel and unusual punishments"; the import of them being too indefinite. Mr. LIVERMORE. The clause seems to express a great deal of humanity, all which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary. What is meant by the terins excessive bail? Who are to be the judges? It lies with the court to determine. No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind. The question was put on . the clause, an(l.it~","a~~,!greed~ a considerable majority." In interpreting its legislative history, some have suggested that the' eighth amendment was intended to curb no more than the torturous punishments that historically had been imposed in England." However, the Supreme Court in Weems v. United States," adopting an evolutionary approach to eighth amendment jurisprudence, has persuasively argued that the amendment also was directed against tyrannies yet to be invented: 25. I ANNALS OF CONGRESS 782 83 (J. Gales ed. 1789). 26. Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion). The Court stated that the "American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were H

primarily concerned, however, with proscribing 'tortures' and other 'barbarous' methods of punishment." Id. at 169-70. 27. 217 U.S. 349 (1910).

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[Patrick] Henry and those who believed as he did would take no chances. Their predominant political impulse was distrust of power, and they insisted on constitutional limitations against its abuse. But surely they intended more than to register a fear of the forms of abuse that went out of practice with the Stuarts. Surely, their [jealousy] of power had a saner justification than that. ... With power in legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power? And it was believed that power might be tempted to cruelty. This was the motive of the clause, and if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts['], or to prevent only an exact repetition of history. We cannot think that the possibility of a coercive cruelty being exercised through other forms of punishment was overlooked." The meaning of the eighth amendment is not merely proscriptive, it is aspirational. Representative Livermore commented in 1789 that "[t]he clause seems to express a great deal of humanity."29 That humanity is its greatest virtue. For as the Supreme Court declared in Trop v. Dulles,30 "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards."31 II.

COMMON LAW DEVELOPMENT

A. Cruel and Unusual Punishments Clause Although the language of the cruel and unusual punishments clause nowhere restricts its scope to criminal sanctions, the Supreme Court has ruled that "the power to punish with which the Eighth Amendment is concerned" attaches only after the government "has secured a formal adjudication of guilt."" The 28. ld. at 372-73. 29. 1 ANNALS OF CONGRESS 782 (J. Gales ed. 1789) (statement of Rep. Livermore). 30. 356 U.S. 86 (1958) (plurality opinion). 31. Id. at 100. The executive branch also has trumpted the protections provided by' the cruel and unusual punishment clause as part of OUf international human rights policy. See Law Day speech before the University of Georgia Law School by Secretary of State Cyrus R. Vance (Apr. 30, 1977) (U.S. conception of "human rights" means the "right to be free from ... -torture[, and] cruel. inhuman, or degrading ... punishment"). Vance said this policy reflected "our Nation's origin and progressive values." [d, 32. Ingraham v. Wright, 430 U.s. 651, 671 n.40 (1977), Nonetheless, this formalistic definition of punishment does not leave persons constitutionally unprotected against other types of government mistreatment. For these abuses, the Court has suggested that the due process clauses of the fifth and fourteenth amendments provide constitutional protections "at least as great" as those available under the eighth amendment. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979».

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cruel and unusual punishments clause establishes three types of limitations on criminal punishment: (a) it substantively limits which acts may be punished as criminal; (b) it determines the types of punishment that may be inflicted; and (c) it prohibits punishment that is disproportionate to the severity of the crime. 33

I.

The Substantive Content of the Clause

In defining the scope of the cruel and unusual punishment clause, the Court has only rarely addressed the substantive limits of criminality." On those few occasions in which it has reached this question, the Court has made clear that in the absence of an illegal act, it is unconstitutional to impose criminal punishment on an individual solely because of his or her personal characteristics." This means that an individual may not be criminally punished for status offenses such as being a drug addict," an alcoholic," or a homosexual," although punishment for public acts associated with these characteristics would not violate the eighth amendment. 39 The Court has been asked to declare only one category of punishment unconstitutional per se: the death penalty. But while its landmark decision in Furman v. Georgia"° struck down all existing capital punishment schemes, the Court did not pass on the constitutionality, per se, of the death sanction. Indeed, four years later in Gregg v. Georgia," the Court determined that the imposition of capital punishment was not invariably cruel and unusual." The Court has nevertheless made it clear that certain methods of punishment are, or have become, constitutionally impermissible. At the very least, the clause proscribes the "inhuman and barbarous" punishments forbidden at common law at the time the eighth amendment was enacted, such as those 33. Ingraham v. Wright, 430 U.S. at 667. 34. Much of the Court's jurisprudence has been directed at defining the method and degree of punishment which may consitutionally be imposed for a criminal violation, See id. (cruel and unusual punishments clause primarily directed at " 'the method or kind of punishment imposed for ~_~t2'he

violation of.."criminal s~utes' ~,~.,LCffiQ.ti!!K.l:..-oJY.dlYJgxas...392Jl.s.--.5lA ....-531-,"32.,O-968)~(-plural ity opinion». 35. Robinson v. California, 370 U.S. 660, 667 (1962). 36. [d. at 666-67.

37. Powell v. Texas, 392 U.S. 514, 532 (1968) (plurality opinion) (state may not punish chronic alcoholic for status of being drunk); id. at 549 (White, J., concurring) (same); id. at 56970 (Fortas, J., dissenting) (same). 38. See Bowers v. Hardwick, 478 U.S. 186 (1986) (although finding no fundamental right to practice homosexual sodomy, five Justices indicated that imprisonment of a homosexual for engaging in such acts privately and consensually may violate the eighth amendment). Id. at 203 n.2 (Blackmun, J., with Brennan, Marshall & Stevens, JJ., dissenting) (homosexual orientation "may well form part of the very fiber of an individual's personality" and punishment for acting on that predisposition may violate the eighth amendment); id. at 197 (Powell, J., concurring). 39. See Powell v. Texas, 392 U.s. at 532 (chronic alcoholic could be punished for act of being drunk in public). 40. 408 U.S. 238 (1972) (per curiam). 41. 428 U.S. 153 (1976) (plurality opinion). 42. ld. at 187.

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that "involve torture or a lingering death. "43 Thus, "burning at the stake, crucifixion, breaking on the wheel, or the like" are "!IIanifestly cruel and unusual."44 Other punishments clearly have become unconstitutional since the adoption of the Bill of Rights; for example, the practice of' "earcropping" Or other loss of limb, which were acceptable punishments in colonial times." The third branch of the cruel and unusual punishment clause, which governs the degree of punishmel1t that may be inflicted upon a criminal, is C1.lffently the most controversial aspect of the clause. Following the tradition first expressed in the Magna Carta,46 the clause requires that a criminal sanction be proportional to the severity of the offense for which it is imposed. The constitutional determination of proportionality consists of a two-level analysis. First, a punishment is excessive, and therefore Ul1constitutiol1al, if it is grossly disproportionate to the defendant's criminal offense. 47 Two overarching values, one substantive, the other procedural, guide this judgment. The punish!IIent must itself "co!IIport with the basic concept of humal1 digl1ity at the core of the amendment,"" a concept whose substance is measured by the "evolving standards of decency that mark the progress of a maturing society."49 Second, punishments involving the Ul1necesSary al1d wanton imposition of Pain are excessive,5O although that infliction need not be il1tentiol1al." Punishments that serve no valid deterrent or retributive purposes, and hence lack penological justification, fall into this second, category." The Court has held, however, 43. In re Kommlor, 136 U.S. 436, 447 ()890). 44. Id. at 446. 45. See infra notes 66-73 and accompanying text (discllssing ev()h.ltionary nature of what

Plln~

iSl1ment consiq,ered cruel). 46. 9 Hon. III, ch. 12. 47. Sokm v. Helm. 463 U.S. 277, 284 (1983): Grogg v. Goorgia, 428 U.S. at 186·87. 48. Trop v, Dulles, 356 U.S. 86, 100 (1958) (p!uql.1ity opinion), qupted in Gregg v. Georgia, 428 U.S. at 182. 49. Gregg v. Georgia, 428 U.S. at 173 (quoting Trop v. Dulles, 356 U.S. at lQl); see alsp Estelle v. Gamble, 429 U.S. 97, 102 (1976) (eighth amendrnent embodies broad and idealistic concepts of dignity, civilized standards. humanity, and decency against whicl1 court evaluat~s penal measures). 50. Rhodes v. Chllpman, 452 U.S. 337, 346 (1981) (qlloting Gregg v. Georgia, 428 U.S. at 173); In re Kommler, 136 U.S. at 447 (quotin$ Wilkorson v. Utah, 99 U.S. 130. 136 (1878)) ("punishments of tditure and all others in the same line of unnecessary cruelty, are forbidden by the eighth amendment"). 51. Whitley v. Albers, 475 U.S. 312, 319 (1986) ("It is obduracy and wantonness, nm inadver~ tence or error in good faith, that characterizes the conduct prohibited by the Cruel and Unusual Punishments Clause."). 52. Enmund v. Florida, 458 U.S. 782 (1982): Rhodos v. Cpapman. 452 U.S. at 346. Th. Court in Enmund held that it was impermissible uncler the eighth amendment to impose the death penalty for aiding and abetting a robbery in which a murder was committed when the q#endant neither killed nor intende4 thilt the killing take' place, reasoning that executing such individuals wouldl1ave neither deterrent nor· retributive value~ 458 U.S. at 798; see Thotnpson v. Oklahoma, 108 S. Ct. 2687, 2700 (1988) (plurality opinion) (death penalty for juvenile offenders younger than age 16 unconstitutional in part because it does not measurably contribute to peno:logicai goals of retribution and deterrence). But see infra notes 99~101 and acco!Upanying text (four politically conservative Justices would do away with this inquiry altogether).

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that a capital defendant has no federal constitutional right to compare whether his sentence is disproportionate to sentences imposed in other, similar cases." The evolving standards of decency gain their substantive content from objective indicia of community values. 54 There are two distinct tests of community values, one applied in non-capital cases, and another, facially more intricate test applied in capital cases. In Solem v. Helm," one of the rare cases in which the Court has held a non-capital sanction to be excessive, 56 a bare majority of the Justices adopted a three-factor analysis for determining proportionality in non-capital cases: comparison of the gravity of the offense with the harshness of the penalty; comparison of the sentence with those imposed on others convicted of the same offense or similar offenses in the same jurisdiction; and comparison of the sentence with those imposed for the same or similar offenses in other jurisdictions." In evaluating capital cases, the Court has considered five factors in determining evolving community values: state legislative and congressional judgments, jury sentences, historical practices relating to the challenged punishment, public opinion, and international practices." However, the political division within the Court leaves unclear both the constitutional standard by which proportionality is ascertained and whether the Court will even continue to employ such a test in the future. In applying proportionality analysis, the Supreme Court has held the death penalty to be excessive when imposed for certain types of crimes or upon certain classes of offenders. The Court has found the sanction disproportionate 53. McCleskey v. Kemp, 481 U.S. 279, 306 (1987): Pulley v. Harris, 465 U.S. 37, 50-51 (1984). The Pulley Court stated that there "is no basis in our cases for holding that comparative proportionality review by an appellate court is required in every case in which the death penalty is imposed and the defendant requests it." 54. Thompson v. Oklahoma, 108 S. Ct. at 2692 & n.7; McCleskey v. Kemp, 481 U.S. at 300; Ford v. Wainwright, 477 U.S. 399. 406 (1986); Solemv. Helm, 463 U.S. at 290 & n.17. 55. 463 U.S. 277 (1983). 56. Id. at 303 (lif~ sentence without possibility of parole imposed under repeat offender statute ~~·-~~--ex-eessive~for~sevent:h,,-nonviolent--felony=attempting""1:o-'Pasr({'-$tOO~rro-:;-tfc'C()U~trt'~cl1eckT-'''SOlem

1S

factually indistinguishable from Rummell v. Estelle, 445 U.S. 263 (l980), in which the Court, also by a bare majority, permitted life imprisonment, imposed under an habitual offender statute, for a property crime committed by a three-time offender. [d. at 284-85. Another case in which a noncapital sentence was deemed excessive is Weems v. United States, 217 U,s. 349, 381-82 (1910), in which the Court held that denaturalization was ,excessive punishment for falsifying entries in public record. 57. Solem v. Helm, 463 U.s. at 292. 58. Justice Brennan has advocated applying the Solem proportionality analysis to death sentences-the context in which most proportionality challenges are raised-and indeed a majority of the Court may implicitly be doing so. It is arguable that Justice O'Connor, who relies almost exclusively on legislative judgments and jury sentences is applying the Solem test, with limited emphasis on its first factor. It also is arguable that the four politically moderate and liberal Justices who support proportionality analysis are applying a Solem analysis, but have emphasized and expanded that same factor, and have viewed international practices as relevant to the comparison of sentences imposed in "other jurisdictions."

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for crimes in which no death occurs" and when imposed upon aiders and abettors of a felony in which a murder is committed by others if the defendant did "not kill, attempt to kill, or intend that a killing take place or that lethal force ... be employed."60 Additionally, it is unconstitutional to impose the death penalty on a prisoner who becomes insane while awaiting execution'! or on an offender who was younger than age sixteen at the time the crime is committed, regardless of the nature of the crime. 62 It also may be unconstitutional to execute a person who is profoundly retarded." The Court has, however, ruled that capital punishment is not necessarily excessive when imposed on other classes of offenders. Consequently, defendants aged sixteen or older at the time of their offense64 and offenders who are mildly retarded" can constitutionally be executed. 2.

Evolving Standards of Decency and the History of Eighth Amendment Jurisprudence

As early as 1910, the Supreme Court alluded to the evolutionary nature of eighth amendment analysis. 66 The Court believed that the amendment applied only to the means of carrying out a penal sanction and not to the constitutionality of the sanction itself. A half-century later, in Trop v. Dulles," a plu59,. See, e.g., Coker v. Georgia, 433 U.8. 584, 592 (1977) (plurality opinion) (holding death penalty unconstitutional for non-homicidal rape of an adult woman); Hooks v. Georgia, 433 U.S. 917, 917 (1977) (per curiam) (vacating and remanding death penalty imposed for robbery in which no murder occurred); Eberheart v. Georgia, 433 U.S. 917 (1977) (mem.) (same for kidnapping in which the Victim was not killed). For an historical comparison, see generally Higginbotham & Kopytoff, Racial Purity and Interracial Sex in the Law oj Colonial and Antebellum Virginia, 77 GEO. L.J. 1697, 2008 (1989) (mandatory death penalty imposed on black offenders after 1823 for rape or attempted rape of white woman). 60. Enmund v. Florida, 458 U.S. 782, 797 (19S2); cj. Tison v. Arizona, 481 U.S. 137, 157-58 (1987) (death penalty may be imposed on felony-murderer who, although not intending to kill, exhibits a "reckless disregard for human life"). 61. Ford v. Wainwright, 477 U.S. 399,409·10 (1986). 62. Thompson v. Oklahoma, 108 S. Ct. 2687, 2700 (1988) (plurality opinion) (death sentence per se disproportionate for offenders younger than 16 at the time of the crime). Justice O'Connor's decisive fifth vote limited the holding to those states that specified no minimum-age for death eligibility. [d. at 2710 (O'Connor~ J., concurring). However, no state 'specifically authorizes the death penalty for murders committed under age- 16. 63. Penry v. Lynaugh, 109 S. Ct. 2934, 2954 (1989) (dicta). Justice O'Connor, writing for the majority, noted that "it may indeed be 'cruel and unusual' punishment to execute persons who are profoundly or severely retarded and wholly lacking the capacity to appreciate the wrongfulness of their actions." Id.; see id. at 2958 (Brennan, J., with Marshall, J., dissenting in part) (unconstitutional per se to execute the retarded); id. at 2963 (Stevens, J., with Blackmun, J., dissenting in part) (same). A majority of the Court therefore appears to believe that profoundly or severely retarded offenders may not be subject to the death penalty. However, as Justice O'Connor suggested, such individuals would likely not be prosecuted or convicted "because of the protections afforded by the insanity defense today." Id. at 2954 (majority opinion). 64. Stanford v. Kentucky. 109 S. Ct. 2969, 29S0 (1989). 65. Penry v. Lynaugh, 109 S. Ct. at 2954. 66. See Weems v. United States, 217 U.S. 349, 378 (1910) (eighth amendment "acquire[s] meaning as public opinion becomes enlightened by a humane justice"). 67. 356 U.S. 86 (1958) (plurality opinion).

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rality of the Court articulated the contemporary standard: the eighth amendment reflects the "evolving standards of decency that mark the progress of a maturing society. "68 This formulation of the amendment is now well-settled." As a consequence, punishments once considered permissible have been held to violate the eighth amendment." Two classic expositions of the evolutionary nature of eighth amendment jurisprudence are found in Furman v. Georgia." In his concurring opinion, Justice Brennan noted the certain unconstitutionality of the punishment of "earcropping," despite the Founding Fathers' explicit recognition in the fifth amendment of "loss of limb" as then acceptable punishment. 72 Justice Powell, in dissent, argued along similar lines: Neither the Congress nor any state legislature would today tolerate pillorying, branding, or cropping or nailing of the ears-punishments that were in existence during our colonial era. Should, however, any such punishment be prescribed, the courts would certainly enjoin its execution. Likewise, no court would approve any method of implementation of the death sentence found to involve unnecessary cruelty in light of presently available alternatives." Historic trends in this country and across the world demonstrate a decline both in the types of crime for which capital punishment may be imposed and, until recently, in the frequency of executions. 74 In England, capital punishment 68. [d. at 101. 69. See, e.g., Rhodes v, Chapman, 452 U.S. 337, 346 (1981) (courts cannot apply static test to determine eighth amendment violations); Estelle v. Oamble~ 429 U.S. 97, 102 (976) (adopting Trop standard for eighth amendment analysis of prison conditions); Gregg v. Georgia, 428 U.S. 153, 171 (1976) (eighth amendment interpreted "in a flexible and dynamic manner"); see also Furman v. Georgia. 408 U.S. 238, 375 (1972) (Powell, J., dissenting) (whether issue viewed as due process or cruel and unusual punishment, «fundamental premise upon which either standard is based" evolves). Not only is the acceptability of the death penalty a function of evolution, but, some scholars would say, capital punishment may be explained in terms of biological evolution. For an interest~~~~-;in:::g=asrae on th'e relation of evolUtionary theory to capltaI" puniS-fiment, see R~ALiXANDER;llAR:-~--~~ WlNISM AND HUMAN AFFAIRS 240Al (1979), in which the author notes that the function of law is to regulate reproductive competition among individuals, and capital punishment is restricted to those crimes that most seriously interfere with society's established reproductive opportunities. AI~ exander accounts for the death penalty in crimes against society such as treason by saying that such crime, by weakening the aggregate social unit, "threatens to lower the fitness of everyone else in one's society." Id. at 241. 70. Compare In re Kemmler, 136 U.S. 436, 447 (1890) (death penalty not cruel and unusual unless manner of execution inhuman and barbarous) with Gregg v. Georgia, 428 U.S. at 188 (death penalty cruel and unusual if sentencing procedures create substantial risk of arbitrariness); cf, McCleskey v. Kemp, 481 U.S. 279, 300 (1987) (most recent decisions on constitutionality of death penalty shaped by examination of contemporary values). 71. 408 U.S. 238 (1972) (per curium). 72. [d. at 263 (Brennan, J., concurring). 73. Id, at 430 (Powell, J., dissenting) (citation omitted), 74. See id. at 299 (Brennan, J., concurring) ("although 'the death penalty has been employed throughout our history.' .,. in fact the history of this punishment is one of successive restric M

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was once inflicted for virtually all felonies, and the two were so closely associated that Blackstone found it conceptually difficult to separate them: "if a statute makes any new offence [a] felony, the law implies that i[t] shall be punished with death."" The reach of the death sanction was significantly more restricted in this country." Nevertheless, the express language of the Constitution, this nation's tioo" (citation omitted»; Thompson v. Oklahoma, 108 S. Ct. 2687. 2709 (1988) (O'Connor, J " concurring) (summarizing trend toward abolition of death penalty between 1846 and 1968); see also AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA: THE DEATH PENALTY 207 (1987) (appendix listing executions in the United States since 1930). There has, of course. been an increase in executions since Gregg, following the cessation of executions just prior to Imd after Furman. See AMNESTY INTERNATIONAL,· supra, at 195 (~ppendix listing executions in United States ~jnce 1976). This American trend away from government-sanctioned killing is evident as well in th~ parallel issue of the use ofd,eaq,ly force by police again$t fleeing criminals. See Tennessee v. Garner, 471 U.S. 1, 13-20 (1985) (detailip.g long~term movement in state law and police department polici~s away from common-law rule that deadly force may be used against any fleeitig felon). There has a been a simihtr international trend towards the progressive abolition of the death penalty; a trend most clearly demonstrated by the practices of the Western democracies. As Amnesty International has reported:

Most West European countries have abolished the death penalty for all offences or for ail but certain extraordinary offences such as wartime crimes: Turkey is the only country in the region to have carried out executions in recent years. Fifteen of the 2~ member states of the Council of Europe have signed the Sixth Optiona1 Protocol to, the European Convention on Human. Rights, outlawing the death penalty for peacetime offences and preventing its reinstatement in countries which have abolished it; it had been ratified by five member states by May 1986. AMNESTY INTERNATIONA+, supra, at 180-81 (1987). Additionally, Canada and New Zealand permit the death penalty only for wartime crimes or for crimes punishable under military law. Id. at 228. Australia in 1985 became the most recent of the twenty-eight nations to have abolished capital punishment altogether. [d. at 181. Nevertheless, despite Amnesty's continuing protestations to the contrary, the death penalty is clearly legal under international law. The laws of 147 nations and territories provide for capital punishment. [d. at 228·31. The Jnternational Covenant on Civil and Political Rights specifically permits the sanction as punishment for "the most serious crimes." International Covenant on Civil and Political Rights, Part Ill, art. 6, adopted D~c. 16,1966, G.A. Res. 2200 (X;XI), 21 U.N. GAOR. Supp: (No. 16) at 52, U.N. Doc. A/6316 (1966) (entered into force Mar. 23, 1976) [hereinafter International Covenant]. The International Court of Justice has implicitly recognized its validity. See Corfu Channel Case, 1949 I.C.J. 4, 90 ("A condemnation; even to the death pen· alty, may be well-founded on indirect evidence."). Indeed, the death sanction's 'legitimacy is implicitly recognized even by American jurists who are sympathetic to the application of international principles to domestic law and by at least one international law scholar who woud limit the imposition of the death penalty. See People v. Ghent, 43 Cal. 3d 739, 781, 739 P .2d, 1250. 1277, 239 Cal. Rptr. 82, 109-10 (Mask, J., concurring) (when International Covenant specifically recognizes legality of death penalty, international law does not compel elimination of capital punishment); Pella, Towards an Internationa/Criminal Court, 44 AM. J. INTL. L. 37, 65 (1950) (proposing creation of international criminal COttrt with death penalty opt-out provision for nations Qesignated to carry out death sentences if their laws do not provide for capital punishment). 75. 4 W. BLACKSTONE, COMMENTARJES ON THE LAW OF ENGLAND *98, quoted in Tennessee v. Garner. 471 U.S. 1. 13 & n.11 (1985). 76. For excellent histories 'of capital punishment in the United States, see generally H. BEDAU,

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colonial and subsequent historical practices, the intent of the Framers, and recent Supreme Court decisions all argue for the constitutionality of the death Penalty in the United States. The Framers clearly understood capital punishment as a valid penal sanction. 77 Three clauses in the fifth amendment expressly mention capital punishment,78 although the eighth amendment appears to have been intended to limit such recognized punishment. Additionally, the plain language of the due process clause of the fourteenth amendment repeats the fifth amendment's due process implied acceptance of capital punishment: no state shall "deprive any person of life, liberty, Or property, withont due process of law."" Historical practices in England and in the colonies prior to the Bill of Rights and customary practices under the Articles of Confederation provide further evidence of the Framers' widespread acceptance of the death penalty for civilians." Similarly, the death penalty has long been available in the military context. Indeed, the Massachusetts Articles of War of 1775, considered to be the first American code of military criminal law, authorized capital punishment. The American Articles of War of 1776, the first military code affecting the entire colonies, also provided for capital punishment.'J Subseql1ent history in the United States provides additional evidence of a clear intention to utilize the death penalty." Congress, in its first Crimes Act of the United States, authorized the death penalty fOr such crimes as "forgery of public securities, or knowingly uttering forged public securities with intent to defraud, as well as treason, murder, piracy, mutiny, robbery, or rescue of a person convicted of a capital crime."S3 Most significant today are .the Su-

THE DEATH PENALTY IN AMERICA (3d ed. 1982); W. BOWERS, LEGAL HOMICIDE (1984); F. ZIMRING & G. HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA (1986). 77. See Furman v. Georgia, 408 U.s. 238. 283 (1972) (Brennan, J. t concurring); id. at 380

(Burger, C.J" dissenting). 78. The fifth amendment provides: "No person shall be held to answer for a capital or other~ wise infamous crime, unless on the presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when ~n actual service in time of War or ·~~_··~~-pu6fic-aanger;ttorsfiajr anyperson~6e sti6}ectt'Ortllesameoffence tooc-TWIceput -fn jeopardyof life or limb; ... nor be deprived of life, liberty, or property, without due process of law, ... " U.s. CONST. amend. V (emphasis added). 79. U.S. CONST. amend XIV (emphasis added). 80. Furman v. Georgia, 408 U.S. at 376-77 (Burger, C.J., dissenting). 81. United States v, Matthews, 13 M.J. SOl, 521 n.9 (A.C.M.R. 1982). 82. As the Court noted in Trap, "the death penalty has been employed throughout our his~ tory." Trop v. Dulles, 356 U.S, 86, 99 (1958) (plurality opinion). The same is true in the military context. Capital punishment has been retained in each of the five revisions of the American Articles of War. United States v. Matthews, 13 M.J. at 521 n.9 (citing the 1806, 1874, 1916, 1920, and 1948 code revisions). In 1956, the Articles of War were replaced by the Uniform Code of Military Justice which included provisions for the death penalty. The 1968 revisions of the Uniform Code, which are currently in effect, also retained the authorization of capital punishment. [d. (citing 10 U.S.C. §§ 801-940 (1982 & Supp. V 1987». 83; Ex parte Wilson, 114 U.S. 417, 427 (1885) (discussing Act of April 30, 1790, ch. 9, 1 Stat. 112), quoted in Weems v. United States, 217 U.S. at 399 (White, J., dissenting).

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preme Court's holdings in Gregg v. Georgia," its companion cases, Proffitt v. Florida" and Jurek v. Texas," and in Lowenfield v. Phelps" upholding specific state approaches to capital punishment. 88 3.

Proportionality Analysis

Proportionality analysis is the means by which the Court determines the content of the evolving standards of decency and guarantees that a punishment is not constitutionally excessive. The analysis has engendered sharp philosophical and political disagreement within the Court. On the one hand, four politically conservative members of the Court advocate a positivist, judicial abstentionist approach. On the other hand, four politically moderate and liberal members argue for a categorical approach .. Justice O'Connor holds the swing vote. 89 O'Connor agrees in principle with Justices Blackmun, Brennan, Marshall, and Stevens that a categorical approach should be employed, but frequently applies that approach to produce results more consistent with the views of Chief Justice Rehnquist and Justices Kennedy, Scalia, and White, who oppose proportionality analysis altogether. 90 84. 428 U.S. 153, 207 (1976) (plurality opinion) (upholding Georgia's imposition of the death

penalty against a claim that such a penalty was per se unconstitutional). 85. 428 U.S. 242, 259~60 (1976) (plurality opinion) (upholding Florida's imposition of death penalty against eighth amendment claim). 86. 428 U.S. 262, 276 (1976) (plurality opinion) (upholding Texas' imposition of death penalty). 87 .. 108 S.C!. 546, 554~55 (1988) (upholding Louisiana's imposition of death penalty). 88. Despite the long history of the use of the death penalty, Justice White recently observed in Tennessee v. Garner, 471 U.S. 1, 14 (1985), that H[a]lmost all crimes formerly p~nishable by death no longer are or can be." Opponents. of the death penalty have attempted to restrict capital punishment even further by challenging the method by which it is carried out. See Glass v. Louisiana, 471 U.S. 1080, 1093 (1985) (Brennan, J., dissenting from denial of certiori) (electrocution should be held unconsitutional as impermissably violent method of execution). The Court, however, has never invalidated a means of execution. In fact, the federal courts have permitted execution by various means. See, e.g., In re Kemmier', 136 U.S. at 445·47 (electrocution); Watson v. Blackburn, 756 F.2d lOSS, 1058 n.l (5th Cir. 1985) (per curiam) (same), cert. denied, 476 U.S, 1153 (1986): O'Bryan v. McKaskle. 729 F.2d 991, 994 (5th Cir. 1984) (per curiam) (lethal injec· tion); Gray v. Lucas, 710 F.2d 1048, 1057~61 (5th Cir.) (per curiam) (cyanide, gas), cert. denied, 463 U.S. 1237 (1983): Andrews v. Shulsen, 600 F. Supp. 408, 431 (D. Utah t984) (firing squad), a/I'd, 802 F.2d 1256 (10th Cir. 1986), cert. denied, 108 S. Ct. 1091 (1988). 89. Initially, Justice O'Connor opposed proportionality analysis and joined Chief Justice Bur~ ger's dissent in Solem v. Helm, 463 U.S. 277, 313 (1983) (Burger, C.J., with White, Rehnquist & O'Connor, JJ., dissenting). Since then, however, she has become a supporter of this type of con~ stitutional analysis, In Stanford v. Kentucky, 109 S. Ct. 2969 (1989) (O'Connor, J., concurring), Justice O'Connor stated: "[iIn my view, this Court does have a constitutional obligation to conduct proportionality analysis." Id. at 2981. She has even advocated extending a Solem~like anaIy,sis to claims raised under the excessive fines clause. See Browning·Perris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2933~34 (1989) (O'Connor, J" dissenting); see also infra notes 264·82 and accompanying text (discussing Browning-Ferris). 90. Stanford v. Kentucky, 109 S. Ct, at 2979-80 (plurality opinion of Scalia, J., joined by Rehnquist, C.l., White & Kennedy, 11,) (rejecting "so·called 'proportionality' analysis" in favor of the judgments of political majorities).

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In the 1988 term, in Thompson v. Oklahoma," a plurality of four politically liberal and centrist Justices employed five proportionality factors to conclude that the death penalty is disproportionate punishment for offenders who were younger than age sixteen at the time of the commission of their crime." In the 1989 term, in dissent, the same four Justices expressly relied on four of the factors to reject as unconstitutional, the execution of murderers aged sixteen or seventeen at the time of their offenses." Justice O'Connor, in her opinion for the Court in Penry v. Lynaugh,94 employed the fifth factor-historic, common-law practices-with respect to executing retarded individuals," but has been noncommittal on the applicability of international opinion and practices. 96 At the same time, four conservative Justices regard the use of public opinion and international practice as being constitutionally irrelevant indicia of social values." Justice O'Connor has joined this wing of the Court in asserting that public opinion polls and resolutions of professional organizations are constit1ltionally irrelevant as indicators of contemporary values." Thus, a majority of the Court apparently will restrict itself to analyzing the legal judgments of government entities-legislatures and juries. The four conservative Justices have also suggested that the second proportionality inquiry, whether a punishment is excessive "because 'it makes no 91. 108 S. Ct. 2687 (1988) (plurality opinion). 92. [d. at 2691-98. 93. In his dissenting opinion, Justice Brennan stated: [T]he rejection of the death penalty for juveniles by a majority of the States, the rarity of the sentence for juveniles, both as an absolute and a comparative matter, the decisions of respected organizations in relevant fields that this punishment is un~ acceptable, and its rejection generally throughout the world, provide to my mind a strong grounding for the view that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders'. Stanford v. Kentucky, 109 S. Ct. at 2986 (Brennan, J., with Marshall, B1ackmun & Stevens, JJ., dissenting). ----~=94.10rS~Ct."2934\191f9~--~·-~---·---·----

95. [d. at 2953-54. 96. See Thompson v. Oklahoma, 108 S. Ct. at 2707 (referring to but not discussing constitu~ tional impact of international agreements that set minimum age of 18 for death eligibility and to which the United States is a party). Justice O'Connor left open the possibility that these agree ments ,might be legally significant for reasons that she did not express. Id. She may have been alluding to the fact that, because international treaties have the status of federal law in some circumstances, they would supercede and invalidate inconsistent state iaws. See infra notes 119~169 and accompanying text (discussing potential international law challenges to the death penalty). 97. Stanford v. Kentucky, 109 S. Ct. at 2979 (plurality opinion of Scalia, J., joined by Rehnquist, CJ., White & Kennedy, JJ.) ("socio~scientific" evidence should be directed at Congress and state legislatures, not courts); id. at 2975 (sentencing practices of other nations are irrelevant to American conceptions of decency, and practices of other countries "cannot serve to establish the Eighth Amendment prerequisite[ ] that the practice is accepted among our people"). 98. Penry v. Lynaugh, 109 S. Ct. at 2955 ("The public sentiment expressed in these and other polls and resolutions may ultimately find expression in legislation, which is an objective indicator upon which we can rely."). H

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measurable contribution 10 acceptable goals of punishment ' or because it is 'grossly out of proportion to the severity of the crime' has no place in our Eighth Amendment jurisprudence."99 Such an approach would merge the second and third classes of inquiry under the cruel and unusual punishmentS clause into a single category. Under the analysis suggested by Justice Scalia first in Penry and again in Stanford: "A punishment is 'cruel and unusual' (i.e., society has set its face against it) or it is IiOt."'oo Such analysis resurrects the contention of the four diSSenters in Solem that the eighth amendment "reaches only the mode of punishment and not the length of a sentence of imprisonment," 101 and that as a consequence, proportionality analysis is not constitutionally required. The practical and jurisprudential impact of these opposing viewpoints is dramatic. The politically conservative Justices on the Court would prefer to abstain from independently determining that any punishment is excessive. Instead they would serve as referees of the judgments of political majorities. Under their approach, when a sufficient number of states expressly abandon a "cruel" penal sanction, it becomes numerically "unusual" and thus unconstitutional. This wing of the Court has not enunciated what comprises this critical threshold. But what is clear is that without a near universal consensus of legislative majorities declaring a penal sanction cruel and unusual, or of juries refusing to convict or sentence, the Stanford plurality would not invalidate a punishment as disproportionate. The proportionality dispute also rekindles the ongoing debate about the constitutional role of the judiciary. The most conservative wing of the Court asserts that the sUbjectivity inherent in proportionality analysis "replaces judges of the law with a committee of philosopher-kings."'02 However, the conservative minority's fear of tyranny by judicial activism is significantly undercut by its own admission that the Court has never relied on their disfavored indicia of contemporary values-public opinion and international practices-to condemn a punishment without also finding "that the objective indicators of state law or jury determinations evinced a societal consensUs against that penalty."'OJ And, as the liberal/centrist minority has correctly pointed out, allowing the constitutional content of the eighth amendment to be determined by political majorities counters the basic thrust of the Bill of Rights, which was intended to protect against the tyranny of such majorities.'M Because this split is esSentially political and intractable, it will be resolved only as a result of political attrition through the process of appointing new Justices to the Court. 99. [d. at 2964 (Scalia, J., with Rehnquist, C.l., White & Kennedy; 11., dissenting) (citations omitted). 100. [d. (Scalia, J., dissenting); Stanford v. Kentucky, 109 S. Ct. at 2979 (plurality opinion). 101. Solem v. Helm, 463 U.S. at 313 (Burger, C.l., with White, Rehilquist & O'COrinor, 11;, dissenting) (emphasis in original). 102. Stanford v. Kentucky, 109 S. Ct. 2969, 2980 (1989) (plurality opinion of Scalia, J., with Rehnquist, C.l., White & Kennedy, 11.), 103. Id. (citations omitted), 104, Id, at 2986~87 (Brennan, J" with Marshall, Blackmun & Stevens, 11" dissenting).

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Individuation Of Sentences

The proportionality debate is symptomatic of a broader division in the Court as to whose judgments should control the outcome of death penalty cases. Just as the conservatives would defer to state legislatures in deciding which classes of felons may be executed, so too would they defer to the factfinding of juries and trial court judges in individuating sentences. The conservative Justices thus do not regard youthfulness or mental retardation as irrelevant to capital sentencing; they regard these factors as mitigating circumstances that the capital sentencer must evaluate in choosing between imposing life imprisonment or the death penalty. '05 However, the recent history of eighth amendment jurisprudence does not support the notion that these Justices have completely rejected categorical judgments in favor of individualizing each death sentence. Indeed, these same Justices have supported statutes that would have categorically imposed the death penalty for certain crimes.'06 Political philosophy aside, the Court as a whole has developed a striking and cohesive "constitutional mandate of individualized determinations in capital-sentencing proceedings."'" At the heart of this individualized-sentencing doctrine is the Court's consistent recognition that the imposition of the death sentence must be directly related to the moral culpability of the individual defendant-los This doctrine powerfully lends itself to a fact-based rather than categorical approach to capital sentencing. First, as discussed earlier, the Court seems generally to view factors such as youth and mental retardation as mitigating the imposition of individual death sentences rather than as categorically exempting defendants from its imposition.109 Second, the Court has invalidated statutes mandating execution for particular crimes, and thereby has rejected the categorical imposition of the death penalty. lIO And finally, the Court has 105. See Penry v. Lynaugh, 109 S. Ct. 2934, 2956 (1989) (majority opinion of O'Connot, J., joined by Rehnquist, C.J., White, Scalia & Kennedy, JJ.) ("mental retardation has long been ·~-~-~-"'--regardeaisa-ractor-lfiittmayaiminjsnan individual's culpability for a criminal act"); Stanford ~~--,-~~- v. Kentucky, 109 S. Ct. 2969, 2978 (1989) (plurality opinion of Scalia, J., joined by Rehnquist, C.l., White & Kennedy, JJ.) (defendant's age is an "individualized mitigating factarn"). 106. See Sumner v. Shuman, 483 U.S. 66, 87 (1987) (White, J., with Rehnquist, C.J. & Scalia, J., dissenting) (the Constitution does not prevent legislatures from determining that no amount of mitigating evidence could warrant reduction of a death sentence in "an especially aggravated and exceptionally narrow category of first-degree murder"). Justice Kennedy had not yet been appointed to the Court when Sumner was decided. 107. ld. at 75 (majority opinion). 108. see, e.g., South Carolina v. Gathers, 109 S. Ct. 2207, 2210 (1989); Tison v. Arizona, 481

U.S. 137, 149 (1987); Enmund v. Florida, 458 U.S. 782, 801 (1982). 109. See supra note 105 and accompanying text. However, even before the Court had permitted the execution of offenders aged 16 and 17 and had categorically rejected the execution of even younger offenders, it had acknowledged the relevance of youthfulness as a mitigating factor. See Eddings v. Oklahoma. 455 U.S. 104. 116 (1982). 110. Sumner v, Shuman, 483 U.S. 66 (1987); Roberts (Harry) v. Louisiana,- 431 U.S. 633 (1977) (per curiam); Woodson v. North Carolina, 428 U.S. 280 (1976) (plurality opinion).

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rejected categorical, statistical evidence that the death penalty is imposed in a racially discriminatory manner, holding that a defendant may invalidate the death penalty for bias only by showing that his individual sentence was a product of purposeful discrimination.!U Only those capital defendants who have a sufficient level of moral culpability may be sentenced to death. As a result, capital-sentencing statutes must "genuinely narrow'~ the class of offenders subject to the death penalty.!l2 Although the Court has not conclusively defined what constitutes such "genuiue narrowing," it has iuvalidated some state statutes on the grouuds that they are unconstitutionally vague.!l3 After conviction of a capital offense, a defendant must be provided the opportunity to demonstrate that he is not so morally culpable that he deserves to be executed. Therefore, he must be permitted to present any relevant mitigating evidence relating to the particular circumstances of his offense, or any aspect of his character, background, or record that could justify imposing a lesser senteuce.!" Ill. McCleskey v. Kemp, 481 U.S. 279, 292-98 (1987). 112. Zant v. Stephens, 462 U.S. 862, 877 (1983). At the very least, this means that the statute must establish rational criteria that channel a sentencer's discretion in imposing the death penalty and that prevent its arbitrary and capricious administration. See, e.g., McCleskey v. Kemp, 481 U.S. at 305; California v. Brown, 479 U.S. 538, 541 (987); Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality opinion). The Court has recently held that this narrowing function may be performed at either the guilt or the sentencing phases of a capital trial. Lowenfield v. Phelps, 108 S. Ct. 546, 554,.55 (1988) (the legislature may narrowly define what constitutes a capital offense "so that the jury finding of guil,t responds to this concern [or itI ... may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase"). 113. See Maynard v. Cartwright, 108 S. Ct. 1853 (1988) (Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance unanimously invalidated when the Oklahoma Court of Criminal Appeals had not adopted any narrowing construction that could direct the sentencer's attention to any particular aspect of a killing that justified imposing the death penalty); Godfrey v. Georgia, 446 U.S. at 428-29 (Georgia's "outrageously or wantonly vile, horrible or-inhuman" aggravating circumstance unconstitutionally applied when the sentencing judge failed to instruct the jury that the statute had been construed by the Georgia Supreme Court to require serious physical abuse or torture of the victim prior to death). The Court has indicated that it will affirm a death sentence imposed under a facially standard~ less aggravating circumstance if the state's cqurts have read the statute as requiring "some kind of torture or serious physical abuse" of the victim. Maynard v. Cartwright, 108 S. Ct. at 1859-60; see also Proffitt v. Florida, 428 U.S. 242, 255-56 (1976) (plurality opinion) (upholding application of "especially heinous, atrocious or cruel" aggravating circumstance when Florida Supreme Court had construed statute as reaching only concienceless or pitiless crimes unnecessarily torturous to the victim). The Justices have not indicated what other judicial constructions would survive constitutional scrutiny. Maynard v. Cartwright, 108 S. Ct. at 1860. The Court has, however, clearly stated that a death penalty imposed under a constitutionally defective aggravating circumstance cannot be "cured" by facts that would have justified imposit).g the sanction under a valid aggravator. Id. at 1859. 114. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 394 (1987); Skipper v. South Carolina, 476 U.S. 1, 4 (1986): Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). The Supreme Court has found a broad range of mitigating circumstances to be relevant to the defendnat's moral culpability. These include: degree of participation in the crime, Lockett v. Ohio, 438 U.S. at 594 n.2 (defendant has participated neither in planning robbery nor in the shooting that fol-

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States may not procedurally preclude the capital sentencer from considering this evidence. ll5 Similarly, states may introduce aggravating evidence only if it relates to the defendant's moral culpability. Thus, the state cannot subject an individual to execution based on impermissible or unconstitutional aggravating factors such as his race, sex, religion, or political beliefs.'!' Furthermore, the state may not introduce into evidence information about the murder victim or the impact of the crime on the victim's family or community if the defendant was unaware of these factors at the time of the capital offense. 1l7 This determination has lowed and, as getaway driver, she had disregarded accomplice's orders to keep the car running, instead leaving the car to get something to eat); youth, Stanford v. Kentucky. 109 S. Ct. 2969, 2978 (1989) (plurality opinion); Eddings v. Oklahoma, 455 U,S. 104, 115 (1982); mental retardation, Penry v. Lynaugh, 109 S. Ct. 2934, 2956 (1989); emotional instability. Eddings v. Oklahoma, 455 U.S. at 115; family background, Hitchcock Y, Dugger, 481 U.S. at 398; Eddings v, Oklahoma, 455 U.S. at 115; capacity lor rehabilitation, Hitchcock v. Dugger, 481 U.S. at 398; good conduct in prison, Skipper v. South Carolina, 476 U.S. at 4-5. Although the federal circuit courts have found a number of proffered mitigating factors to be irrelevant to the defendant's character, background, and record or to the circumstances of the offense, see Project, Eighteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts 01 Appeals 1987~1988, 77 GEO. L.J. 489, 1184 n.2975 (1989) (citing cases), the Supreme Court has itself rejected only one such circumstance. See Franklin v. Lynaugh, 108 S. Ct. 2320, 2328 (1988) (pluraHty opinion of White, J., with Rehnquist, C.J" Scalia & Kennedy, JJ,); id. at 2335 (O'Connor, J., with Blackmun, J., concurring) (lingering doubts as to defendant's guilt), 115, The Court has found such impermissible barriers to have been imposed by statute, see Penry v. Lynaugh, 109 S, Ct. 2934, 2947~52 (1989) (Texas "special issues" sentencing scheme did not permit jury to give effect to mitigating evidence of defendant's mental retardation); Lockett v. Ohio, 438 U.S. 586, 606~07 (1978) (plurality opinion) (Ohio sentencing scheme impermissibly barred consideration of mitigating factors not recognized by statute); see also supra note 110 and accompanying text (mandatory death sentences unconstitutional); by the sentencing court, see Mills v. Maryland, 108 S, Ct. 1860, 1866-68 (1988) (jury instruction on how to fill out verdict form created substantial probability that jurors could not consider evidence in passing sentence unless they unanimously accepted that evidence as mitigating); Hitchcock v. Dugger, 481 U.S. 393, 39899 (1987) (advisory jury was instructed not_ to consider,_a.nd sentencing t!!9g~.!~fused--.!Q~.!1.s",id,"e";rcnonstatutory mitigating circumstances); Skipper v. South Carolina, 471 U.S. I, 4 (1986) (trial judge refused to admit mitigating evidence of defendant's good conduct in prison); Eddings v. Oklahoma, 455 U.S. 104, 112-14 (1982) (trial court instructed jury as a matter of law to disregard mitigating evidence); by state evidentiary rules, Green v. Georgia, 442 V.S, 95, 97 (1979) (per curim) (exclusion of highly relevant mitigating evidence under state's hearsay rule); and by verdict forms, Mills v, Maryland, 108 S. Ct, at 1870-72 (verdict form designed in such a way that jurors might believe they were preclUded from considering a mitigating circumstance even though they had not unanimously agreed that it did not exist), 116. Zant v. Stephens, 462 V.S, 862, 884 (1983). The Court has ruled that the capital sentencer may consider the defendant's prior criminal history as an aggravating factor. [d. at 855; see Sumner v. Shuman, 107 S. Ct. 2716, 2725 (1987) (prior convictions); Alabama v. Evans, 461 V.S. 230, 232-33 (1983) (per curiam) (previous involvement in nearly forty felonies), 117. South Carolina v. Gathers, 109 S. Ct. 2207, 2211 (1989) (the content of religious tracts the victim was carrying and prosecutorial comments about the victim's personal characteristics, inferred from his possession of these items and a voter registration card, held irrelevant to the circumstances of the crime and to the defendant's moral culpability when there was no evidence that the defendant was aware of their contents); Booth v. Maryland, 482 U.S. 496, 503-07 (1987)

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engendered contentious debate, but the Court appears to have put aside its ideological fervor on this issue in favor of stability and judicial consistency.l18

B. Emerging Human Rights Challenges to the Death Penalty As the Supreme Court serially eliminates potential eighth amendment challenges to imposing capital sanctions, opponents of the death penalty will begin to look elsewhere for grounds to invalidate capital punishment statutes. United States human rights obligations may emerge as a fertile source of federal, non· constitutional challenges to these statutes. Although such human rights challenges have been unsuccessful to date, '" there exist a wide range of available arguments which could place the substantive content of American treaty obligations before the Court. 1. New Death Penalties International human rights standards arguably provide a basis to broadly challenge newly enacted or amended death penalties, although such challenges in American courts are likely to fail on their merits. Amnesty International asserts that any new authorization of capital punishment violates the spirit if not the letter of international law.'20 The group cites a number of international treaties l21 (victim-impact statement that discussed the character and reputation of the victim and the effect of the murder on his family inadmissible at capital-sentencing hearing because unrelated to the defendant's moral culpability). 118. Justice White, joined by three other Justices, had argued in Booth that "the particularized harm that an individual's murder causes to the rest of society and in particular to his family" should be a relevant sentencing consideration. 482 U.S. at 517 & 0.2 (White. Jr., with Rehnquist, C.l., O'Connor & Scalia, JJ., dissenting), With the addition of Justice Kennedy to the Court, five Justices appeared to accept the use of victim-impact statements in capital-sentencing proce'edings, See Mills v. Maryland, 108 S, Ct. 1860, 1876 (1988) (Rehnquist, C,J" with O'Connor, Scalia & Kennedy, 11., dissenting) (Booth wrongly decided because defendant's moral culpability directly related to the extent of harm he caused). However, Justice White did not find it necessary to reach the victim-impact question in Mills, and, this year, he joined the moderate and liberal Justices in refusing to overrule Booth. See South Carolina v, Gathers, 109 S. Ct. at 2211 (White, J" concurring). 119. See Celestine v. Butler, 823 F.2d 74, 79-80 (5th Cit. 1987) (Louisiana death penalty not invalid for alleged treaty violations under American Declaration of Rights and Duties of Man and Charter of the Organization of American States since method for adjudicating disputed issues is well-settled and defendant raised no additional factors for modifying those decisions), cert. denied, lOS S. Ct. 6 (1987); People v. Ghent, 43 Cal. 3d 739, 779, 739 P.2d [250, 1276, 239 Cal. Rptr. 82, 108, (1987) (United Nations' human rights resolutions that have not been implemented by Congress and are not self-executing have no effect on California's death penalty statute), 120. See AMNESTY INTERNATIONAL, supra note 74, at 178-80. 121. See American Convention on Human Rights, O.A.S, Official Records OBA/Ser. K/XVl/ 1.1, Doc. 65, Rev. 1. Corr. 1, January 7, 1970. 9 l.L.M. 101 (1970), 65 A.J.l.L. 679 (1971). 9 I.L.M, 673 (1970), arts. 4(2) ("application of [capital punishment] shall not be extended to crimes to Which it does not presently apply") & 4(3) ("death penalty shall not be re-established in states that have abolished it'.'); International Covenant, supra note 74, art. 6 ("[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment"). Amnesty International contends that the United States, as a signatory to these treaties, is obligated under Article 18 of the Vienna Convention on the Laws of Treaties to refrain from acts which would "defeat the[ir] object and purpose." See AMNESTY INTERNATIONAL, supra note 74, at 118-79 (quoting the Vienna Convention).

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and United Nations resolutions Jn that it claims articulate an international consensus to, irt time, abolish capital puniShment, and which preclude creation of new capital offenses. However, putting aside the question of whether international intent as to future practices may bind a nation's contemporary practices, the statements and acts of the United States Congress, President, and Supreme Court and the reauthorization of the death penalty by many states would seem to meet the international law requirement of "persistent objection" and thereby exempt the United States from the strictures of this non-peremptory customary international standard.'" 2.

The Execution of Minors

Unlike the broadside challenge to new death penalties, the legality of state laws that authorize the execution of offenders for crimes committed under the age of eighteen is susceptible to challenge on the merits. International human rights norms prohibit the execution of minors. Article 6, clause 5, of the International Covenant on Civil and Political Rights contains a clear and unequivocal expression of this prohibition: "Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.. "124 Nevertheless, numerous state statutes authorize, and the Supreme Court has approved, execution of minors in certain circumstances. J25 122. See AMNESTY INTERNATIONAL, supra note 74, at 178. (citing G.A. Res. 2857 (1971) (progres-

sive restriction of number of capital offenses and eventual abolition of capital punishment are primary international human rights objectives); G.A. Res. 32/61 32 U.N. OAOR Supp (No. 45) at 136, U.N. Doc. A/32/45 (1977) (reaffirming Resolution 2857». 123. The Supreme Court has recognized that nations are bound by customary international law. See generally The Paquete Habana, 175 U.S. 677 (1900). However such custom achieves status as law only when it reflects the "general practice [of nations] accepted as law." Statute of the International Court of Justice, art. 38, quoted in L. HENKIN, R. PUGH, O. SCHACTER & H. SMlT, INTERNATIONAL LAW CASES AND MATERIALS 35 (2d ed. 1987) [hereinafter INTERNATIONAL LAW); see also RESTATEMENT (TmRD) OF FOREIGN REl.ATIONS § 102(2) (1987) ("Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. "). -~."--_._----~'"BecauseofThls requirementof '-consistenT practice out of a' sense of legal "obligation,"a custom-'ary norm is not binding on a nation that dissents from the principle during its development. RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 102 comments b & d and reporters' note 2. The most dearwcut example of a nation that is not bound by international custom is that of the persistent objector, who by its words and acts consistently indicates its sense that the norm does not create any legal obligation. See generally INTERNATION LAW. supra, at 64-68 (discussing persistent objector rule and the position of "non-consenting" states). 124. International Covenant, supra note 74, at 52; see also Charter of the Organization of American States. April 30, 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361 and American Declaration of the Rights and Duties of Man, a.A.S. Res. XXX, adopted by the Ninth International Conference of American States, Bogata, 1948, O.A.S. Off. Rec. OEA/Ser. L.lV/1.4 Rev. (1965). 125. See Stanford v. Kentucky. 109 S. Ct. 2969, 2980 (1989) (permissible to execute offenders aged 16 or older at time of crime); see also High v. Kemp, 819 F.2d 988, 993 (11th Cir. 1987) (Georgia not prohibited from imposing death penalty on 17-year-old statutory adult who has "intentionally and viciously taken a life in cold blood"), cerl. denied 109 S. Ct. 3264 (1989); cf. Thompson v. Oklahoma, 108 S. Ct. 2687, 2700 (1988) (plurality opinion) (unconstitutional to exe w cute offender who was younger than sixteen at time of crime).

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Nineteen states authorize capital punishment without setting any statutory minimum age. 126 Seven others expressly permit executions for crimes committed by persons under age eighteenY' As of last summer, thirty inmates in the United States were on death row for crimes committed when they were under the age of eighteen. I" And, although no one in this country has been executed in the last three decades for crimes committed prior to turning seventeen, three persons aged seventeen at the time of their offenses have been executed since Gregg v. Georgia officially re-sanctified the death penalty in 1976. 129 In the 1987-1988 term a plurality of four Justices held in Thompson v. Oklahoma l3O that evolving standards of decency prohibit the execution of an individual for crimes committed under the age of sixteen. l3l The Court, however, avoided a constitutional interpretation that would have squarely placed the United States in compliance with international Jaw. 132 Justice O'Connor's deciding vote found such executions imposed "under the authority of a capital punishment statute that specifies no minimum age" to be unconstitutional,133 but left open the question of whether a legislature could constitutionally specify such punishment. Nevertheless, because no states expressly permit capital punishment for crimes committed by youths under age sixteen,l34 the decision effectively eradicated these executions. However, during the 1988-1989 term in the consolidated cases of Stanford v. Kentucky and Wilkins v. Missouri,I" the Court ruled that "the imposition of capital punishment on any person who murders at 16 or 17 years of age" is constitutionally permissible. The constitutionality of these execu" tions is clearly incompatible with the substance of the international treaties and is a likely source of future litigation.

I"

3. Executions of Prisoners Whose Legal Claims Remain Unresolved A final, more limited treaty-based challenge that may delay executions until the underlying substantive eighth amendment or treaty challenge can be 126. Thompson v. Oklahoma, 108 S. Ct. 2687, 2694_95 & n.26 (1988) (plurality opinion). 127. See id. at 2696 0.30 (four states permit death penalty when offender aged 17 or older;

three permit death penalty at age 16). Eleven states statutorily set age 18 as the limit for imposing the death penalty. [d. 128. Justices to Consider Banning Death Penalty for Juveniles, N.Y. Times, July 1, 1988, at B7, col. 1 (citing data provided by National Coalition to Abolish the Death Penalty). 129. Jd. 130. 108 S. Ct 2687 (1988) (plurality opinion of Stevens, J., joined by Blackmun, Brennan & Marshall, JJ.». 131. Jd. at 2700. 132. Prior to Thompson, the Court had sidestepped the constitutional question of executing mi~ nors. In Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court reversed a death sentence imposed on a juvenile offender on the alternate ground that the trial court had improperly failed to con~ sider the mitigating circumstances of the defendant's emotional instability and troubled youth. Id. at 112-17. 133. Thompson v. Oklahoma, 108 S. Ct. at 2711 (O'Connor, J., concurring). 134. Jd. at 2706. 135. 109 S. Ct. 2969 (1989) (plurality opinion). 136. Jd. at 2980.

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adjudicated is arguably also available. The International Covenant on Civil and Political Rights guarantees certain due process protections including a full and final adjudication of capital cases.'" Article 6(1) states that "[n]o one shall be arbitrarily deprived of his life." 138 Article 6(2) permits the penalty to be carried out only "pursuant to a final judgment rendered by a competent court."'" Finally, Article 6(4) grants to "[a]nyone sentenced to death ... the right to seek pardon or commutation of the senteuce."!40 Together, these provisions manifest a strong international belief that death penalty cases must be fully and carefully adjudicated. A number of prisoners in the United States have been executed because Supreme Court rules and practices permitted denials of stays although legal issues in their cases remained unresolved.!" In Watson v. Butler, '" the Court denied a stay of execution despite the votes of half its Justices to hold the case pending resolution of a constitutional challenge to the underlying capital punishment statute.'" Four Justices believed the case presented issues indistinguishable from those certified by the Court in Lowenjield v. Phelps,'" that the statute, by providing coextensive factors proving guilt and aggravating cireumstances, impermissibly failed to narrow the category of persons subject to the death penalty.'" Only three Justices are required to hold a case under Supreme Court rules.'" However, the same rules require five votes to stay an execution,I47 Similarly, in Streetman v. Lynaugh,'" there were four votes to hold the easel" but insufficient votes to grant a stay of execution. As in Watson, the Court denied the stay. Streetman presented the same question on which the Court had previously granted certiorari in Franklin v. Lynaugh'50- w hether a capital sentencing jury must be instructed of the potential misuse of mitigating evidence as proof of an aggravating circumstance under the Texas 137. 138. 139. 140.

International Covenant, supra note 74, art. 6. [d. art. 6, 01. I. [d. art. 6, cl. 2. Jd. art. 6, cl. 4. ----T4r8ee, e.'g., Streetman -'V:-LYnaugh;'108 S. cT 588, 588 (l987);W6Itev-:Dugger, 108 "~ci~'-'-20, 20 (1987); Watson v. Butler, 108 S. Ct. 6, 6 0987); see also Berry v. Phelps, 819 F.2d 511, 517 (5th Cir. 1987) (in absence of declaration by Supreme Court that executions should be stayed in cases raising issue identical to that in which Court had granted a stay, circuit court would deny st!';y of execution). 142. 108 S. Ct. 6 (1987). 143. ld. at 7 (Brennan, J" with Marshall & Blackmun, 11., dissenting from denial of stay of execution); id. at 8 (Stevens dissenting). 144.484 U.S. 231 (1988), ,eh'g denied, 108 S.Ct. 1126 (1988). 145. Watson v. Butler, 108 S.Ct. at 7 (Brennan, J., with Marshall & Blackmun, JJ., dissenting). 146. Jd. 147. ld.

'.,,, 148. 108 S. Ct. 588 (1988). 149. Justices Blackmun and Stevens, although not joining the dissent, would have granted the application for stay of execution. ld. at 591. 150. 108 S. Ct. 221 (1987).

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capital punishment scheme.'" Franklin's case was still pending at the time Streetman's petition was denied. Justice 13rennan acidly noted in dissent that "the unique nature of the [death] penalty" rendered unavllilable to Streetman the delayed relief possible for any other type of habeas corpus petitioner: "[h]is case will be moot long before we can resolve Franklin~he will be dead .... Death is certainly different, but I had never believed it to be different in this way." '52 The Court has most openly addressed this procedurlll controversy in Straight v. Wainwright. 1S3 The Court ordinarily will stay an execution when four Justices vote to grant certiorarL'54 This anti_majoritarian practice, which is called the "Rule of Four,"'55 provides the four minority Justices an opportunity to persuade at least one of the majority Justices to change his or her mind and delays execution until the Court Can COnsider the case on its merits. 1S6 Four Justices had voted to hold Straight's petition for certiorari, which argued that Florida's death penalty statute impermissibly prohibited the jury from considering nonstatutory mitigating factors, because it presented constitutional issues similar to those raised in Darden v. Wainwright.'57 Nonetheless, five Justices voted to deny the stay of execution. Justice Brennan, joined by Justices Marshall and Blackmun, severely critici~ed the Court's action: It would be disturbing enough if the Court were to allow this execution to proceed without acting on the merits of Straight's petition for certiorari, since this would allow him to be executed despite the continuing possibility of relief from this court. What the Court does here is far more alarming, however. FOr the fact is that in my view the Court has acted on the merits of Straight's petition. Four Justices have voted to "hold" Straight's petition because they believe it presents an issue sufficiently similar to Darden to warrant delaying disposition of Straight's case until a decision is reached in that case. To deny a stay of execution in the face of this "hold" is, in my view, a wrong to which I mllY not be a silent witness.

A "hold" is analogous to a decisiOn to grant a petitiOn for certiorari. The Court's hold policy represents the conviction that like 151. Streetman v. Lynaugh, 108 S~ Ct. at 590 (Brennan, J.• with Mar~hall. J., dissent~ng from denial of stay of execution). 152. ld. 153. 476 lJ.S. 1132 (1986). 154. Id. at 1132 n.2, (Powell, J., joined by Burger, C.J., Rehnquist & O'Connor, 11., conCUrring in the denial of stay of execution). 155. hi. at 1135. (Brennan, J" dissenting). 156. [d. 157. 473 U.S. 927 (1985).

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cases must be treated alike. Like the "Ru]e of Four," it grants to a minority of the Court the power to prevent the majority from denying a petition for certiorari when the minority is persuaded that the issues or questions presented in the case to be held are similar to a case that the Court is to decide.. .. A vote to "hold" is a statement by a number of Justices that the disposition of the granted case may have an effect on the merits of the case which is to be held. . . . It is unthinkable to me that the practice that four votes to grant certiorari trigger an "automatic" fifth vote to stay an execution should not apply to a "hold" when a man's life is the balance. ISS Justice Powell, writing for four Justices, rejected Brennan's analogy between votes to hold and votes to grant certiorarL's? "First and foremost," Powell reasoned, "the Court often 'holds' cases for reasons that have nothing to do with the merits of the cases being held, as when we wish not to 'tip our hand' in advance of an opinion's announcement,"'60 Justice Powell apparently had not considered that refusing to grant a stay of execution when four Justices would hold the case pending the outcome of another case also serves to "tip [the Court's] hand" in the other direction. "Second," Powell argued, "when certiorari is granted, by definition the Court's resolution of the issues presented in that case might affect the judgment rendered below.... The judgment in a held case may rest on a number of grounds sufficient to sustain it."'61 Thus, Powell voted against granting certiorari on the grounds that the Court would never reach the merits of Straight's claims because his petition for certiorari was successive and amounted to an abuse of the writ of habeas corpus.'62 But, as Justice Marshall pointed out in his dissent, the federal court of appeals had "incorrectly found [petitioner's first habeas corpus] claim procedurally barred even though, on state collateral review, the Florida Supreme Court had reached it on the merits. Had the Court of Appeals properly considered that claim," Justice Marshall said, "this second habeas petition might not have been nee-

- - - - - essary:-'-tT63-··_··__·_··,_·_'····_·_·_·_·,_··_·_·,---._,._..._.._-_.._._.._ •._ _. _ - - _ . _ . _..._..._.._.._._..-._•._.

.~ •. _,._,-,-,-,.,-_._._-~-_._

158. Straight v. Wainwright, 476 U.S. at 1l34~35 (emphasis in original). Justice Brennan asserted that "[t]he principle [underlying this rule] is apparent: whether an individual obtains relief should not turn on the fortuity of whether his papers were the first, the second or the tenth to reach the Court. What counts is the merits." [d. To deny a stay when four Justices would hold the case "is to give a new and gruesome meaning to the old notion of the 'race to the courthouse.' ... It is to divide litigants arbitrarily into the condemned and the spared on the basis of what amounts to little more than a footrace." [d. 159. [d. at 1133 n.2. (Powell, J., joined by Burger, C.l., Rehnquist & O'Connor, JJ.). 160. [d. 161. [d. (emphasis in original). 162. Id. at 1133. 163. [d. at 1136 n.l (Marshall, J., with Brennan, J., dissenting) (citing Straight v. Wainwright, 422 So.2d 827, 832 (Fla. 1982); Straight v. Wainwright, 772 F.2d 674, 677-78 (lith CiL 1985)).

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The Court has permitted executions in other cases in which it rendered impossible final disposition on the merits. In Darden v. Wainwright, 1" four Justices dissented from denial of a stay of execution. Justice Blackmun, joined by Justice Stevens, dissented "[b]ecause this Court has not yet had an opportunity to review the denial of applicant's first petition for a federal writ of habeas corpus."I65 Blackmun and Stevens found the denial of the stay made it impossible for the Court "to consider whether to grant certiorari in the normal course of business. "166 And in White v. Dugger l67 the Court denied a stay despite the failure of the Florida Supreme Court to act on unresolved state issues determining the legality of the petitioner's death sentence.1" Justices Brennan and Marshall dissented from this "tacit approval of a death sentence whose factual predicate the executing state has not reviewed for consistency with intervening Supreme Court precedent." 169 The Court's rush to execute, while an apparent violation of international human rights norms, would appear as well to violate the due process clauses of the fifth and/or fourteenth amendments. As Justice Brennan wrote in Watson v. Butler,17O "[t]he Court today thus permits Mr. Watson's legal claim to stay alive while condemning Watson himself to die under a sentencing scheme that within a matter of months the Court may conclude is unconstitutional. ... This prospect is the ultimate derogation of the Court's duty to provide equal justice under law."1?1 Nevertheless, while more enlightened Courts might some day interpret the Constitution differently, it is definitionally incoherent to argue that actions of the Supreme Court, the final arbiter of constitutionality in the United States, are themselves unconstitutional. The Court would be equally unlikely to declare its own practices violative of federal treaty obligations. C.

I.

The Military Death Penalty

The Customary Legitimacy of Military Capital Punishment

Despite the evolutionary trend toward the abolition of the death penalty for traditional domestic offenses, capital sanctions for military offenses, war 164. 473 U.S. 927 (1985). 165. [d. at 928 (Blackmun, J., with Stevens, J., dissenting). Justices Brennan and Marshall dis~ sented separately. ld. 166. Id. 167. 108 S. Ct. 20 (1987). 168. ld. at 20 (Brennan, J., with Marshall, J., dissenting from denial of stay of execution and denial of grant of certiorari) ("The State of Florida will execute Beauford White tomorrow morning without so much as a determination by its own courts that his death sentence is currently legal. "). 169. Id. 170. 108 S.Ct. 6 (1987). 171. ld. at 7~8 (Brennan, J., dissenting).

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crimes, and gross human rights abuses appear to have received distinctly different treatment. 172 In many states, capital punishment for treason was among the last applications of the penalty to be discarded. 173 Internationally, treason statutes often are retained despite the abolition of capital punishment for other crimes. l74 Traditional wartime crimes are, under major codes of military justice, manuals of military conduct, and customary international law, subject to the death penalty. The Uniform Code of Military Justice,175 for example, contains numerous death penalty provisions.'76 Similarly, the United States Army Field Manual provides that "[tlhe death penalty may be imposed for grave breaches of the law [of war]. " I n The Army's 1940 Rules of Land Warfare and its 1914 predecessor also specified that "[a]ll war crimes are subject to the death penalty although a lesser penalty may be imposed."'" England's military code also permits the death penalty for all war crimes.'79 The celebrated case of Nurse Edith Cavell illustrates the customary applicability of capital sanctions for war crimes. Cavell, a Red Cross nurse in German-occupied Brussels during World War I, was convicted by a German court martial in August of 1915 and executed by firing squad for helping injured French and British prisoners of war escape into Holland.'so Soon thereafter, French courts martial convicted and executed two German nurses for helping German prisoners escape. As one historian of propaganda reported, the German War Ministry did not take advantage of the executions for propaganda purposes because the German nurses had violated international law: "the French court martial-like the German court martial in Nurse Cavell's case-had acted according to the rules of war; the two German nurses-like Nurse Cavell-had behaved bravely and patriotically and In. Eighteen countries that have abolished the death penalty for ordinary domestic offenses retain capital punishment "only for exceptional crimes such as crimes under military law or crimes committed in exceptional circumstances such as wartime." AMNESTY INTERNATIONAL, supra note 74, at 228. Those nations are Argentina, Brazil, Canada, Cyprus, EI Salvador, Fiji. Israel, Italy, Malta, Mexico, Monaco, New Zealand, Papua New Guinea, Peru, San Marino, Spain, Swjtzer~ -,~._._._,_._._,- _·_··-,-·-land.and~t-he-United··Kingd0m....---Itf;------------··_·

.,_._-,-,_....__._-

~-,_

..._._,_._.._..._...,_._".-

173. See, Wilson, Unconstitutionality of Treason Executions, 45 U. PITT. L. REV. 99, 156~157 (1983) (survey of states' policy on death penalty for treason). 174. Since 1975 seventeen nations have abolished the death penalty for ordinary offenses, but ten of these nations retained capital punishment for "exceptional crimes" such as military crimes or offenses committed during times of war. AMNESTY INTERNATIONAL, supra note 74, at 230~31. 175. 10 U.S.C. §§ 801-940 (1982 & Supp. V 1987). 176. See, e.g., 10 U.S.C. § 906 (1982 &' Supp. V 1987) ("Any person who in time of war found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere ... shall be tried by a general court"martial or by a military commission, and shall, on conviction thereof, suffer death. "). 177. U.S. ARMY, LAW OF LAND WARFARE, FIELD MANUAl, 27~1O, § 508 (1956) [hereinafter FlEw MANUAL].

178. [d. at para. 345-57, 369-77 (1940), quoted in Ex parte Quirin, 317 U.S. I, 34 (1942). 179. See Ex parte Quirin, 317 U.s. at 35 n.12 (quoting GREAT BRITAIN, WAR OFFICE, MANUAL OF MILITARY LAW § 449 (1929)). 180. R. ROETTER, PSYCHOLOGICAL WARFARE 11 (1974).

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they had paid the penalty for acting outside the rules of war."'" The United States historically has accepted the death penalty as a customary in. ternational military norm. 1S2 Additionally, as the Nuremberg War Crimes Trial demonstrates, new capital crimes for human rights violations have gained international acceptance since World War II. The cases of Adolph Eichmann,'" Klaus Barbie,'" John Demjanjuk, '85 and others highlight the sporadic but continuing capital prosecution of egregious human rights violations.'86 181. Jd. at 13.

182. See, e.g., Wilkerson v. Utah, 99 U.S. 130, 137 (1878) (discllssing traditional means of execution for military offenses under international law). 183. Eichmann, the Nazi leao.er responsible for the infamous "Final Solution to the Jewish Problem" escaped Allied forces following World War II. The Israeli Secret Service tracked him to Buenos Aires, Argentina, where he had been living under the assumed name of Ricardo Klement. On May 11, 1960, Israeli secret service agents captured Eichmann near his home and transported him to Israel. He was tried by an Israeli civilian tribunal in a widely publicized trial, convicted, and executed. H.M, SA~H.AR, THE COURSE OF MODERN JEWISH HISTORY 571~72 ( ed, 1977); see generally E!CHMANN INTERROGATED (1983). 184. Klaus Barbie, the renowned "B1J.tcher of Lyon," was a middle~ralJ.king officer of the SS and head of the Gestapo in Lyon during the period from 1942 through late 1944. Goldberg, Klaus Barbie and the United States Government, 19 HARV. C.R,-C,L.L. REV. 1, 1 (1984) (citing A. RYAN, KLAUS BARBIE AND THE UNITED STATES GOVERNMENT: A REPORT TO THE ATTORNEY GENERAL OF THE UNITED STATES (1983», He was charged by the French government with responsibility for the deportation and murder of several thousand civilians and with the assassination and tor~ ture/murder of members of the French Resistance. ld, (citing B. MuRPHY, THE BUTCHER OF LYON 306,.07 (1983». On May 16, 1947, anc\ later on November 25, 1954, French tribunals convicted Barbie in absentia of war crimes and sentenced him to death, Id. (citing B, MURPHY, supra, at 17).

The United States Army Counter Intelligence Corps ("CIC"), disobeying orders of the American Military High Command, employed Barbie as an anti-Communist spy between 1947 and 1951, concealed his employment from the High Command, and arranged his escape from Europe to South America. In 1983, he was expelled from Bolivia and extraoited to France for trial on charg~s of crimes against humanity. Ryan, Klaus Barbie and the United States Government: A Reply to Mr, Justice Goldberg, 20 HARV. C,R,-C.L.L. REV, 71, 71~72 (1985). Barbie was COI1~ victed, but this time, at the request of the French prosecutor, received a sentence of life imprison~ ment. Dowen, A verdict on the butcher; after a final scuffle with history, Barbie is convicted, TIME, July 13, 1987, at 40; Barbie is sentenced to life for crimes against humanity, Wash, Post, July 4. t987 at A-I, col. 2. 185, On April 25, 1988, an Israeli court found John pemjanjuk to be the sadistic prison guard and Nazi exeCutioner, "Ivan the Terrible." He was convicted for his role in the extermination of more than 870,000 Jews at the Treblinka death camp, and became the first person sentenced to death in Israel since Eichmann's execution in 1962. Kubic & Cooper, 'Like long-gone history'; an accused war criminal st{mds trial in Israel, NEWSWEEK, Mar. ~, 1987, at 36 ("John Demjanjuk, alleged to be 'the infamous Treblinka concentration camp guard 'Ivan the Terrible,' faces execu~ tion in Israel"); Kifner, Demjanjuk Given Death Sentence for Nazi Killings, N,Y. Times, at A-I, col. 1 (April 26, 1988). 186, Prosecuted war criminals include: Andrija Artukovic, (Yugoslavia's most~watched NaZi re~ ceives death sentence in trial, Christian Science Monitor, May 15, 1986, at 14, col. 1; Artukovtc may escape firing squad because of his po(ir health, L.A. Times, April 26, 1987; § 1-30, col. I); Fyodor Fedorenko (Fedorenko v. United States, 449 U.S. 490 (1981) (alleged Nazi war criminal Fyodor Fedorenko denaturalized and deported to Soviet Union to face execution for war crimes»;


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Furthermore, while war crimes prosecutions continue, at least one recent international treaty abolishing the death penalty for domestic crimes has nonetheless retained capital punishment for military misconduct. The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms l" provides in Article 2(1) that "[nlo one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."lss Article 15(2) permits "[nlo derogation from Article 2, except in respect of deaths resulting from lawful acts of war."I89 In response to Resolution. 727 of the Council of Europe, appealing to member nations to abolish the peacetime death penalty, and Recommendation 891 recommending amendment of the European Convention to reflect that resolution, the Council approved a new death penalty treaty.l90 Protocol No. 6 to the European Convention abolishes the peacetime application of the death penalty, but permits signatory states to impose the death penalty for wartime acts or acts committed in time "of imminent threat of war." J91 The differences in kind between these human rights abuses and other capital offenses, coupled with the continuing restriction or elimination of the death penalty for all but the most heinous domestic crimes, may presage the eventual abolition of capital punishment except in a narrow class of invidi_ ous domestic or international acts of terror consisting of "crimes against humanity.' , 2.

The Uniform Code of Military Justice

The Uniform Code of Military Justice grants military court-martial jurisdiction to prosecute United States military personnel for peacetime offenses and to prosecute civilians, foreign nationals, and military personnel for wartime crimes. Thirteen articles of the Code specifically authorize capital punIvan Goncharuk (Ukrainian sentenced to die jor, collaborqting with Nazis, N:,Y.,. Times, Oct. 2j)...1_ ._._.._,_,_,~._.~._ .._.~_ 1987, at 8(N), co!:'-3 (Ivan Goncharuk sentencecCiO'-death'in Soviet Union»; and Karl Liunas (No place to hide: A death camp boss is sent home, TIME, May 4, 1987, at 70; Soviet firing squad awaits, 102 U.S. NEWS & WORLD REPORT, Apr. 13, 1987, at 14 (U.S. deportation of Karl Linnas to -Soviet Union», As this Essay was going to press, the provisional Romanian Council of Na~ tional Salvation announced that Nicolae Ceausescu-who had ruled Romania for nearly a quarter century-and his wife, Elena, had been tried, convicted, and executed for the Nuremberg crime of genocide and other crimes against the Romanian people. Army Executes Ceausescu and Wife for l unconstitutional "at least ... where there is no purpose unique to the military mission that would be served" by execution). ~~~~-206 _-l6-M.J~.~~3$4~(G.MA,I983),~~-~~~~~~~~~-~~-~-~~- ~~~~~~~-~--~~-~~~ ~~~~~-~~ ~ ... 207. Id. at 380 (citing Enmund v. Florida, 458 U.S, 782 (1982». 208. 481 U,S, 137, 149 (1987) (capital punishment permissibIe for aider or abetter who was major participant in felony and exhibited reckless disregard for human life). 209. See United States v. Rojas, 15 M.J. at 927 (capital sentencing procedures in U.C.M.J., Article 118 provide sufficient guidance to sentencing authority to be constitutional); United States v. Matthews, 16 M.l. at 382 (death penalty may be inflicted if court-martial sentencing procedure meets standards of Article 55 and eighth amendment). 210. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). 211. See id. 411-12 (Blackmun, J., dissenting) ("Not only are the capital punishment laws of 39 States and the District of Columbia struck down, but also all those provisions of the Federal statutory structure that permit the death penalty apparently are voided. No longer is capital punishment possible, I suspect, for [crimes defined in Titles 18 and 49 of the United States Code] . ... Also in jeopardy, perhaps, are the death penalty provisions in various Articles of the Uniform Code of Military Justice."); id. at 417-18 (Powell, J., with Burger, C.J., Blackmun & Rehnquist, JJ. dissenting) (Furman "invalidates a staggering number of state and federal laws. The capital punishment laws of no less than 39 States and the District of Columbia are nullified. In addition, numerous provisions of the Criminal Code of the United States and of the Uniform Code of Military Justice also are voided.").

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though the Code is similar to other invalidated statutes 212 and Congress has not revised its capital sentenCing procedures213~may be attributable simply to disuse of the penalty. 214 The constitutionality of executions under the Code is blurred further as a result of Presidential Executive Order 12460 amending the capital sentenCing procedures invalidated in United States v. Matthews. 215 While it is doubtful that a Presidential order without Congressional action can CUre a constitutional defect in the underlying enabling legislation, the peculiar constitutional status of military courts makes even this assertion uncertain. Military courts are Article I constitutional creations perhaps more analogous to administrative bodies than to Article III courts. Thus the constitutional question is a choice between two constructs. One would maintain that because Furman invalidated all statutes authorizing the death penalty, no executive branch promulgation of new administrative regulations could salvage the underlying, constitutionally defective, grant of statutory power to execute. The other approach suggests that Furman's focus was procedural and nowhere challenged the President's statutory authority under the Code to establish military court-martial procedures. Under such a reading, a President could constitutionally resurrect the military death penalty by establishing new procedures for its imposition. 2 !6 These questions are academic, however, for since Furman, the Supreme Court has had no occasion to rule on the continued vitality of peacetime executions under the Code. The Court of Military Appeals or the lower courts of military review have found grounds for vacating each of the post-Furman death sentences imposed by courts-martial. Prior to the sentencing of Private First Class Wyatt Matthew by an Army court martial on July 3, 1979,210 the last military death sentence had been handed down on January 6, 1965. 218 The Court of Military Appeals reversed and remanded Matthew's sentence, holding it unconstitutional on procedural grounds and giving Congress or the President ninety days to adopt a rem212. See United States v. Matthews, 16 M.J. at 386·88 (Fletcher, J. t concurring) (military jus· tice system imposes death penalty virtually identical to invalidated California sentencing procedures that imparted absolute discretion to jury). 213. Id. at 385 (citing United States v. Matthews, 13 M.J. 501, 530 (A.C.M.R 1982)); cf United States v. Harper, 729 F.2d 1216, 1226 (9th Cir. 1984) (declaring unconstitutional death perta1ty provision of the federal espionage statutes when statutory guidelines had not been revised post~Furmah),

214. United States v. Matthews, 16 M.J. at 391 (Fletcher. J., concurring) (death penalty in the military justice system has "fallen into desuetude"),

215. Executive order No. 12460, 49 Fed. Reg. 3169 (1984). 216. Cf. McKenzie' v. Risley. 801 F.2d 1519. 1529~30 (9th eir. 1986) (upholding constitutionality of Montana death penalty statute that lacked procedural guidelines for considering mitigating circumstances when the Montana court relied on guidelines contained in another. separately enacted statute). reh'g granted, opinion withdrawn, 815 F.2d 1323 (9th Cir. 1987) (en bane), cert. denied, 109 S.Ct. 250 (1988). 217. Army Court-Martial No. 439064. 218. pfau & Milhizer. The Military Death Penalty and The Constitution: There is Life After Furman, 97 Ma. L. REV. 35, 79 n.325 (1982).

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edy for the defect. 2l9 On remand, after Congress had taken no action and President Reagan promulgated new sentencing regulations applicable only to capital offenses committed on or after January 24, 1984,220 the Army Court of Military Review reduced Matthews' sentence to life imprisonment at hard labor. 221 Lance Corporal Armando Rojas was sentenced to death by a Marine court martial on January 30, 1981. 222 The Navy-Marine Corps Court of Military Review upheld the sentence on February 23, 1983. 223 However, because a commissioner of the Court of Military Review had obtained a copy of notes belonging to govenlment's counsel without the knowledge of either appellate or defense counsel, the case was remanded to the Court of Military Review for de novo review by a new pane!.224 Subsequently, the Court of Military Appeals decided United States v. Matthews. Marine Lance Corporal Leman Hutchinson, II. waS sentenced to death by Navy-Marine court martial on June 22, 1981.'" The Navy-Marine Court of Military Review sustained the sentence on April 22, 1983. 226 On January 30, 1984, the Court of Military Appeals denied a motion to remand the case because it had been heard by the same panel that had initially decided Rojas.'" The appeals court on mandatory review under Article 67(b)(l) of the Military Code'" then summarily reversed the death sentence under the Matthews precedent. 229 The courts of military review have not been called upon to assess the constitutionality of a death sentence imposed under Executive Order 12460, although in November 1984 Todd Andrew Dock was sentenced to death by a United States military court in the Federal Republic of Germany."o The Court of Military Appeals remanded Dock's case on two grounds: first, that in the context of the case, his guilty plea to unpremeditated murder and forceab1e robbery amounted to a plea of guilty to a capital felony muder in violation of the Uniform Code's prohibition against accepting guilty pleas to capital offenses; and second, evidence discovered after trial had cast doubt

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on Dock's mental responsibility.'" Thus, while the military death statutes for peacetime offenses remain on the books and prosecutors throughout the military justice system have sought their application, it is by no means clear that they are constitutional. Nor, if constitutional, is it clear that the legislative intent of the Code's drafters supports the sanction's legality. As Judge Fletcher argued in his Matthews concurrence, "[tlo permit this legal anachronism to be revived ten years after Furman would be to return the military justice system to 'the dark ages,' a course contrary to the intent of Article 55."232 4.

Wartime Executions

As confusing as is the status of peacetime military executions in the United States, the constitutionality and legality of wartime executions under the Uniform Code of Military Justice and under international human rights law is even murkier. Five articles of the Code that govern wartime offenses permit capital sentences at all times.'" An additional four offenses permit death sentences during times of war. '34 One provision mandates death upon conviction of wartime spying.'" None of these offenses require that the crime itself result in loss of life. Thus, even if the Code survives Furman, there is a serious question whether these provisions would survive the Coker-Enmund- Tison"6 line of challenge . . The critical inquiry is whether there is something special and inherently different about military wartime offenses than peacetime or domestic crimes. The unique need to maintain military discipline and effectiveness might provide special circumstances: the possibility that death will be imposed for serious transgressions might deter wartime misbehavior, even when the misconduct neither intended to cause nor in fact produced death. Of course, such an approach must survive Tison's test of moral culpability-exhibiting "reckless disregard" for the value of human life-before capital punishment could be imposed. However, the military could argue persuasively that such reckless disregard is inherent in offenses such as wartime desertions, sentinel misbehavior, or aiding the enemy.237 231. See United States v. Dock, 28 M.J. 117 (C.M.A. 1989). Article 45(b) of the Uniform Code bars acceptance of guilty pleas to capital crimes. V.C.M.J. art. 45(b), 10 U.S.C. § 845(b). 232. United States v. Matthews, 16 M.J. at 388 (Fletcher, J. t concurring). 233. U.C.M.J. art. 94, 10 U.S.C. § 894 (1982 & Supp. V 1987) (mutiny or sedition); U.C.M.J. art. 99, 10 U.S.C. § 899 (misbehavior before the enemy); V.C.M.J. art. 100, 10 U.S.C. § 900 (subordinate compelling surrender); V.C.M.J. art. 102, 10 U.S.C. § 902 (forcing a safeguard); U.C.M.J. art. 104, 10 U.S.C. § 904 (aiding the enemy). 234. V.C.M.L art. 85, 10 V.S.C. § 885 (1982 & Supp. V 1987) (the offense of desertion); U.e.M.J. art. 90, 10 U.S.C. § 890 (assaulting 01' wilfully disobeying superior commissioned officer); V.C.M.J. art. 101, 10 U.S.C. § 901 (improper use of countersign); U.C.M.J. art. 113, 10 U.S.C. § 913 (misbehavior of sentinel). 235. V.C.M.L art. 106, 10 V.S.C. § 906 (1982 & Supp. v 1987). 236. See supra notes 59-60, 204-08 and accompanying text (discussing cases limiting capital punishment when offender did not himself kill victim or in which death did not occur). 237. If the military prevailed on this question, it could re-open the issue, apparently settled in

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On the other hand, it seems fundamentally unfair to execute one's own soldier for crimes that would be non-capital if committed by an enemy prisoner. Treating military offenders by prisoner of war standards would seem to preclude imposition of death for non-homicidal crimes or "reckless disregard" cases not resulting in death, Additionally, the Code's mandatory death 'penalty for wartime spying may transgress the "constitutional mandate of individualized determinations in capital-sentencing proceedings" articulated most recently in Sumner v. Shuman.'" Sumner declared that "the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence, ""9 a possibility inherently lacking in mandatory sentencing schemes. In invalidating each of the post-Furman mandatory capital sentencing statutes, the Court has nowhere held mandatory death sentences unconstitutional per se. 240 At least three Justices maintain that legislatures may mandate death for convictions in "an especially aggravated and exceedingly narrow category" of domestic cases. 241 Wartime military offenses, certain acts of international terrorism, or perhaps even crimes committed against civilians by military personnel during war might constitute such a narrow, aggravated category,"2 Of course, this argument may prove too much. For if such offenses are by their nature so egregious that the Constitution could support the mandatory infliction of capital punishment, juries should have no trouble returning the death penalty even after considering all relevant mitigating factors.

III.

THE EXCESSIVE FINES CLAUSE'"

A. The Early History244 The excessive fines clause has its genesis in Saxon England prior to the divergence of tort and criminal law,'" when a victim of misconduct could --,-,-_._'"'_._,~..__.- '--"-Goker,of~whether~death'-is-a-constitutionaHy-permi

ssible-punishment--for-"other-noll''''homicidal-'of",--''-

fenses that exhibit an inherent disregard for human life-such as when a person intentionally tortures or dismembers another without producing death. 238. 483 U.S. 66, 75, 84~85 (1987). The Court held that a mandatory death sentence for life~ term inmates convicted of murder would be an unjustified "departure from the individualized ca~ital·sentencing doctrine . . . and cannot be reconciled with the demands of the Eighth and Fourteenth Amendments." ld. at 77·78. Because the Uniform Code of Military Justice is a federal statute, fifth rather'than the fourteenth amendment concerns are implicated. 239. Sumner v. Shuman, 483 U.S. at 85. 240. Sumner addressed the question left open when the Supreme Court had previously invalidated other m'andatory death penalty statutes. See Roberts v. Louisiana. 431 U.S: 633, 637 n.s (1977) (per curiam) (reserving question whether mandatory death sentences may be constitutionally applied in narrow case of prisoners serving life sentences); Woodson v. North Carolina. 428 U.S. 280, 287 n,7, 292 n.25 (1976) (plurality opinion) (same). 241. Sumner v. Shuman, 483 U.S. at 86 (White, J., with Rehnquist, C.J" & Scalia, J., dissent~ ing). 242. Compare the development and continued prosecution of crimes against humanity and other war crimes since the Nuremberg Trials discussed, supra, notes 183·86 and accompanying text. 243. The historical background for this section draws substantially from the Court's own, some-

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accepI the equivalent Of modern compensatory damages plus an additional punitive payment in lieu of retaliation.'" After the Norman conquest, this system evolved into one of "amercement"-in which a wrongdoer was required to make payments to the Crown or the King's representative in order to procure the King's mercy,"7 The Crown employed amercements liberally"8 and for a broad range of offenses'" as a source of revenue and as a weapon against its political opponents. 250 Their arbitrary and "sometimes abusive nature"'" led to the first recorded Anglo-American prohibition on excessive monetary penalties, contained in Chapter 20 of Magna Carta. 252 The lack of distinction between criminal and tort law at the time of Magna Carta leaves unclear the modern effects of this prohibition. The amercements clause uses that word only.- not "damages." The distinction between the two was said to be well-known: amercements were payable to the crown, damages were compensatory payments to private litigants.'" Yet

times conflicting, historical treatment of the clause in Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., 109 S. Ct. 2909, 2914-19 (1989) (reading history of. excessive fines clause as not applying to civil penalties); id. at 2927-28 (O'Connor, J., with Stevens, .T., concurring in paft and dissenting in part) (reading history of excessive fines clause as encompassing civil penalties). Browning-Ferris marked the first time the Supreme Court .reviewed a case under the ·excessive' fines clause. 244. Several recentarticl,es detail the history of theex~es~ive fines clause. Boston, Punitive Damages and the Eighth Amendment: Application of the Excessive Fines Clause, 5 COOLEY L. REV, 667 (1988); Massey, The Excessive Fines Clause and Punitive Damages: Some L(!ssons from History, 40 VAND, L REV. 1233 (1987); Jeffries, A Comment on the Constitutionality of Punitive Damages, 72 VA. L. REV. 139 (1986); Note, The Constitutionality of Punitive Damages Under the Excessive Fines Clause of the Eighth Amendment, ,85 MICH. L. REV. 1699 (1987). 245. Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., 109 S. Ct. at 2916 (citing Jeffries,

Supra note, 244, at 154). 246. Jd. (citing W. McKECHNIE, MAGNA CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 284-85 (2d ed. 1958». 247. W. McKECHNIE, supra note 246, at 285. 248. Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc~, 109 S. Ct. at 2917 (citing 2 F. POLLOCK & F. MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE ~lME OF EDWARD I, at 513 (2d ed. 1899) (most Englishmen amerced at least once a Year»; Solem v, Helm, 463 U.s. 277, 284 n.8 (1983) (amercements 'were "the most common criminal sanction in 13th-century England"». 249. Browning-Ferris Indus,', Inc, v. Kelco Disposal, Inc., 109 S, Ct. at 2918 (citing 2F, POL~ LOCK & F. MAITLAND, supra note 248, at 519-520 (amercements required both for minor, breaches of the peace and for variety of civil wrongs». 250. [d. at 2918 n.15 (citing W. McKECHNIE, supra note 246, at 278; G. SMl'l'~l, A CONSTITUTIONAL AND LEGAL HISTORY OF ENGLAND 129, 131 (1955); T. TASWEI.L-LANGMEAD, ENGLISH CON~ STITUTIONAL HXSTORY 83 (T.Plucknett 10th ed. 1946) (characterizing King John's use of amercements as "tyrannical extortions ",' with which (he] had oppressed his people"); 2 W. HOLDSWORTH, A HISTORY OF ENGUSH LAW 214 (4th ed. 1936) (amercements used for improper purposes, including punishing political opposition and raising revenue through inequitable assessments». 251. Jd. at 2919. 252. Id. at 2917 n.15 (citing Magna Carta, 9 HEN. III, ch. 14 (1225), 1 STAT. AT LARGE 5, confirmed, 25 Enw. I, ch. 1 (1297». 253. Id. at 2917 (citing 62 PUBLICATIONS OF THE SELDON SOCIETY 463 (C. Flowered. 1944)).

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the fact that amercements were payable oniy to the Crown may be historical fortuity. Over time, this practice faded and a new practice, the payment of punitive damages to private parties, emerged. 2 " In addition, the "fine" developed in the thirteenth century, involving the voluntary payment of money to the Crown as a substitute for imprisonment.'" As the Crown became expert at extorting fines by imposing sentences of indeterminate length, they became the functional and popular eqnivalent of the amercement. 256 Consequently, the distinction between the terms appears to have disappeared by the severiteenth centnry, and the word "fine" seems to have taken reign, applying to monetary payments in both criminal and civil cases.:m Chapter 20 of the Magna Carta established the requirement that amerce_ ments be proportionate to the wrongdoing for which they were extracted. 258 But the English courts read the clause as not applying to fines, and "during the reigns of Charles II and James II took advantage of theh newly acquired power and imposed ruinous fines on wrongdoers and critics of the Crown."2S' Following the Glorious Revolution of 1688-1689, which culminated in James II's flight from England, the House of Commons appointed a committee comprised in part of men victimized by these fines to draft the English Declaration of Rights. 26O Article 10 of that document retained the requirement of proportionality, stipulating "That excessive Baile ought not to be. reqnired, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted. "261 Finally, the language of the 1689 Declaration of Rights was adopted in Article 9 of the Virginia Declaration of Rights, and was incorporated verbatim in the eighth amendment. 262 254. [d, at 2926 (O'Connor, J., dissenting in part) (citing Boston, supra note 244, at

255. Id. at 2927 (citing 2F. POLLOCK & W. MAITLAND, supra note 248, at 517; Massey, supra note 244, at 1261). 256. [d. (citing Boston, supra note 244, at 719"20; Note, supra note 244, at 1715). 257. [d. (citing Massey, supra notc 244, at 1256; Note, supra note 244, at 1717). _._._._._,._._._.. _._._._.__.- '-'-'-'2S8:-'-Magffa-Catra'!;-a:Inetc-etntmrs-~daus-e-'rea-ds-in1.tn~ntirety:--"--_···_--_·_·· __ ·_·-~··_-,-· -.--.----

A Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contentment; (2) and a Merchant likewise, saving to him his Merchandise; (3) and any other;s villain than ours shall be likewise amerced, saving his wainage, if he falls into our mercy. (4) And none of the said amercements shall be assessed, but by the oath of honest and lawful men of the vicinage. (5) Earls and Barons shall not be amerced but by their peers, and after the manner of their offense. (6) No man of the Church shall be amerced after the quantity of his spiritual Benefice, but after his Lay¥tene~ ment, and after the quantity of his offense. Magna Carta,9 HEN. III, ch. 14. 259. Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. at 2928 (O'Connor, J., dissenting in part). 260. [d. 261. 1 W. & M., 2d Sess., ch. 2, 3 STAT. AT LARGE 440, 441 (1689), quoted in Browning-Ferris Indus., Inc. v. Keko Disposal, Inc., 109 S. Ct. at 2928. 262. See supra note 4 (discussing incorporation of excessive fines clause).

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The Contemporary Meaning oj the Excessive Fines Clause

Until the 1988-1989 term, the Supreme Court had never considered an application of the excessive fines clause of the eighth amendment. 263 In Browning-Ferris Industries v. Kelco Disposal, Inc.,26' the Court was called upon to determine whether the clause's protections apply to the award of punitive damages by a jury in a civil case. Justice Blackmun, writing for seven members of the Court, held that they do no!.''' In Browning-Ferris, the Court canvassed the sparse legislative history of the eighth amendment and concluded that the amendment's "primary focus ... was the potential for governmental abuse of its 'prosecutorial' power, not concern with the extent or purposes of civil damages. "266 The Court explained away the paucity of debate on the amendment on the grounds that at least eight of the original colonies had an excessive fines provision in their own state constitutions or declarations of rights,267 rendering the clause uncontroversial. Justice Blackmun, lacking any guidance from the congressional debates on the meaning of the word "fine," relied on the definitions of the term as understood in colonial America as signifying "a pecuniarie punishment for an offense, or a contempt committed against the king. "268 As so construed, the Court found punitive damage awards in private civil cases to be "too far afield from the concerns that animate the Eighth Amendment. "269 Nonetheless, Blackmun expressly limited the scope of his holding to cases in which all the litigants were private parties. The Court decided "only that [the excessive fines clause] does not constrain an award of money damages in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded. "270 Although the Justices did not decide whether the excessive fines clause applies when the government was or could be a party to a civil action, the Court intimated that it probably would. The Court, in a footnote, read another Blackmun opinion written for a unanimous Court in United States v. 263. Browning~Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. at 2914 (majority opinion). 264. 109 S. Ct. 2909 (1989). 265. ld. at 2912. Justices O'Connor and Stevens believed that the clause should apply. ld. at 2924 (O·Connor. J., with Stevens, J" ·concurring in part and dissenting in part). 266. Id. at 2914 (majority opinion).

267. ld. at 2914 n.5 (citing 1 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 278 (1971) (Delaware); id. at 300 (Georgia); id. at 282 (Maryland); id. at 343 (Massachusetts); id. at 371 (New Hampshire); id. at 287 (North Carolina); id. at 272 (Pennsylvania); id. at 235 (Virgi-

nia». 268. E. COKE, FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND *126b, quoted in Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. at 2914 n.60. Justice Blackmun also cited three law dictionaries published between 1771 and 1852 for the proposition that fines involved the government and not private civil plaintiffs. 109 S. Ct. at 2915 nn. 6 & 7. 269. Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. at 2916. 270. Jd. at 2914.

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Halper27' as "impl[ying] that punitive damages awarded to the Government in a civil action may raise Eighth Amendment concerns."272 The Halper court found that an award of damages to the government in a civil action is not a "punishment" merely because the dollar amount of the sanction authorized by Congress exceeded the damages that the government actually sustained. 273 But, the Court continued, the fact that a proceeding in which the government is a party is civil rather than criminal would not immunize the damage award from constitutional scrutiny if the authorized sanction is "so extreme and so divorced from the Government's damages and expenses as to constitute punishment. "214 Nonetheless, the Browning-Ferris Court distinguished Halper on the grounds that the government of Vermont had not itself attempted to "extract payments" from Browning-Ferris Industries.'" The Browning-Ferris Court expressly avoided the related question of whether the excessive fines clause would be implicated by damage awards in qui tam actions-cases brought by private plaintiffs in the name of the United States and in which the private party receives a share of the damages awarded. 276 Justices O'Connor and Stevens, noting that "[a]wards of punitive damages are skyrocketing," dissented. 277 Justice O'Connor found the silence of the Framers on the excessive fines clause to be ambiguous at best, and asserted that the clause" 'guarantee[s] at least the liberties and privileges of Englishmen.' "278 She argued that "around the time of the framing and enactment of the Eighth Amendment some courts and commentators believed that the word 'fine' encompassed civil penalties," and that therefore an award of punitive damages in a civil trial is subject to the amendment's limitations. 279 In determining whether a damage award is excessive, O'Connor advocated an approach similar to the proportionality analysis employed under the cruel and unusual punishments clause in non-capital cases: First, the reviewing court must accord 'substantial deference' to legislative judgments concerning appropriate sanctions for the con--------------- ---duet--at-issuec--SeeE>nd,+he-e;>uH-shE>uid-ex-amine-the-g-r-av-It-y-E>f-the---- -------.defendant's conduct and the harshness of the award of punitive damages. Third, because punitive damages are penal in nature, the court should compare the civil and criminal penalties imposed in the same jurisdiction for different types of conduct, and the 271. 109 S. Ct. 1892 (1989). 272, Browning-Ferris Indus., Inc. v. Kelko Disposal, Inc., 109 S. Ct. 2920 n.21 (citing United States v. Halper. 109 S. Ct. 1892 (1989». 273. United States v. Halper, 109 S. Ct. at 1898. 274. [d. 275. Browning-Ferris Indus., Inc. v. Kelko Disposal, Inc., 109 S. Ct. at 2920. 276. [d. 277. Id. at 2924 (O'Connor, J., with Stevens, J., dissenting in part). 278. [d. at 2930 (quoting Solem v. Helm, 463 U.S. 277, 285-86 n.IO (1983». 279. [d. at 2931.

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civil and criminal penalties imposed by different jurisdictions for the same or similar condJlct. In identifying the relevant civil penalties, the court shoJlld consider not only the amOJlnt of awards of pJlnitive damages bJlt also statJltory civil sanctions. In identifying the relevant criminal penalties, the COJlrt shoJlld consider not only the possible monetary sanctions, bJlt also any possible prison term. Z80 The Court did not consider whether the dJle process clause "acts as a check on undJle jJlry discretion to award pJlnitive damages in the absence of any express statJltory limit" bec~mse l3rowning-Ferris IndJlStries had failed to raise the claim in lower federal court proceedings.'SI However, fOJlr JJlstices wrote separately to indicate that the claJlse WOJlld be implicated by SJlch a

claim. 282 C.. The Future oj the Excessive Fines Clause AlthoJlgh more than two hJlndred years passed before the Court was called Jlpon to decide its first excessive fines case, tlJe clause will likely make additional appearances in the near future. Certainly the Court will have to resolve the two qJlestions Brownin/J-Ferris left open: whether the claJlse applies to civil proceedings in which the government is a party, and whether it applies in qui tam actions. Justice Blackmun's understanding of "fines" as meaning monetary awards paid to the government or its agents sJlggests that the Court will find the claJlse applicable to both.'" BecaJlse the Court found the claJlse inapplicable in Brownin/J-Ferris, the Justices were not called Jlpon to establish its sJlbstantive content.'84 Justice O'Connor's sJlggestion of a proportionality framework similar to that employed in the cruel and JlnJlsual pJlnishment claJlse seems a good first step. First, the overriding message of the entire amendment-from its protogenesis in the Magna Carta throJlgh its present day application-is that a sanction, criminal or otherwise, shoJlld fit the offense. JJlsticeO'Connor's approach reflects this historical mandate of proportional pJlnishment. Second, as the majority noted, "[tlhe same basic mode of inqJliry shoJlld be applied in considering the scope of the Excessive Fines ClaJlse as is 280. [d. at 281. Id. at 282. /d. at common-law)

2934 (emphasis in original), 2921 (majority opinion). 2923 (Brennan, J., with Marshall, J., concurring) ("Without statutory (or at least standards for the determination of how large an award of punitive damages is ap-

propriate in a given case, juries are left largely to themselves in making this important, and potentially devastating, decision ... , [But] '[t]he touchstone of due process is protection of the individual against arbitrary action of government' .... " (citation omitted»; id, (1.t 2924 (O'Connor, J., with Stevens, J., concurring in part) (punitive damages imposed by juries given "unbridled discretion" to -impose them raises "vagueness and procedural due process problems"), 283. See id, at 2916 (majority opinion) (history of eighth amendme l1 t mandates that excessive fines clause limits only fines directly imposed by and payable to government). 284. !d. at 2921.

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proper in other Eighth Amendment contexts."'" The constitutional insights reached in those cases "are highly instructive" to the interpretation of the excessive fines clause.'" The most analytically similar, and thus instructive, of these cases deal with the question of excessive punishment. The Court has found criminal punishments excessive when they involve the "unnecessary and wanton infliction of pain"287 or are grossly disproportionate to the severity of the misconduct. 288 For the treatment of a prison inmate to be considered wanton, it need involve only bad faith or "deliberate indifference" to his needs. 289 A fine, analogously, can be excessive if the judge or jury imposing it was somehow "out to get" the defendant. Such a claim under the rubric of the excessive fines clause essentially duplicates the due process prohibition against jury awards that are the product of bias or passion, or of "proceedings lacking the basic elements of fundamental fairness. ";290 This duplication, however, does not render this branch of the eighth amendment superfluous. A punishment that totally lacks penological justification also inflicts pain wantonly and unnecessarily.29l Analogously, any portion of a punitive damages award that cannot rationally be said to advance the goals of retribution or deterrence would transgress the excessive fines clause. Furthermore, the eighth amendment regarcls punishment that offends evolving standards of contemporary social values to be excessive. 292 The Court adopted a three-part test for determining this type of disproportionality, after which Justice O'Connor patterned her proposal: comparing the gravity of the offense with the harshness of the penalty; comparing the sentence with those imposed on others convicted of the same or similar offenses in the same juriscliction; and comparing the sentence with those imposecl 285. Id. at 2914n.4. 286. Id. at 2914 n.3. 287. Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg- v. Georgia, 428 U.S. 153, _ _--'c17',13-.\(l976) (]lltlralily opinionlL_. ~-------_ 288. See, e.g., ,Solem v. Helm, 463 U.S. 277, 303 (1983) (life sentence without possibility of parole for seventh nonviolent felony-passing $100 no-account check-disproportionately severe); Coker v. Georgia, 433 U.S. 584, 598-600 (1977) (plurality opinion) (death penalty excessive punishment for rape of adult woman not resulting in death); Weems v. United States, 217 U,S. 349, 381-82 (1910) (sentence of 15 years hard labor and forfeiture of citizenship for falsifying entries in public record excessive). 289. See Whitley v. Albers, 475 U.S. 312, 319 (1986) ("error in good faith" not cruel and unusual punishment); Estelle v. Gamble, 429 U.S. 97, 104-06 (1976) ("deliberate indifference" to prisoner's medical needs would constitute wanton infliction of unnecessary pain). 290. Browning-Ferris Indus., Inc. v. Kelco Disposal, Inc., 109 S. Ct. at 2916. 291. Rhodes v; Chapman, 452 U.S. at 346 (1981) (citing Gregg v. Georgia. 428 U.S. at 173); see Enmund v. Florida. 458 U.S. 782, 798 (1982) (death penalty for felony··murder accomplice in robbery who did not intend to kill and did not participate in murder does not contribute to penological goals of .retribution and deterrence, and unconstitutionally inflicts pain and suffering). 292. E.g., Ford v. Wainwright, 477 U.S. 399. 409-410 (1986) (executing the insane unconstitutionally offends evolving standards of decency).

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for the same or similar offenses in other jurisdictions. 293 O'Connor's proposal simply, and correctly, transplants this basic framework into the excessive fines clause to determine when a punitive damages award is disproportionate. The substantive content of this clause will be highly relevant not only to punitive damages cases involving the government but also to the resolution of the sure-to-arise due process challenges to unfettered jury awards of punitive damages. In the context of due process challenges to conduct which does not implicate the cruel and unusual punishments clause, the Court has indicated that the eighth amendment appears to establish a constitutional minimum standard below which due process protections cannot fall. 294 The same would seem to be true for the excessive fines clause. Justice O'Connor's proportionality standard most likely will be adopted to determine whether jury awards of punitive damages are excessive, whether or not these claims are found to trigger the protections of the excessive fines clause. IV.

CONCLUSION

The cruel and unusual punishments clause, by virtue of its overtly evolutionary nature and the political make-up of the current Court, promises to remain the primary source of eighth amendment litigation. However, the excessive fines clause, awakened from a two-century slumber, will not quickly return to the shadows. Indeed, the mere existence of the latter clause and the principle of proportionality it embodies may play an important role in defending proportionality analysis under the cruel and unusual punishments clause. The principles underlying both clauses will also receive expression in the due process clauses of the Constitution when eighth amendment concerns are not formally implicated. The future of the eighth amendment will closely parallel the political future of the executive branch. And the next few political appointments to the Court will ultimately determine how much regard the Court retains for "[tlhe basic concept [of] ... the dignity of man. "295 ROBERT BRETT DUNHAM

293. Solem v. Helm, 463 U.S. at 292. 294. See supra note 32. 295. Trop v. Dulles. 356 U.S. 86, 100 (1958) (plurality opinion).