The Failure of Comparative Proportionality Review of Capital Cases (with Lessons from New Jersey) (2001)

I. INTRODUCTION Comparative proportionality review is an appellate proceeding peculiar to capital cases.(1) It is provided for, primarily by statute, in twenty (out of thirty-eight) death penalty states.(2) Comparative proportionality review could result in the reversal of a death sentence on grounds of failure to impose the same sentence on other similarly situated defendants. To the most dogmatic opponents of capital punishment, comparative review is a presumptively valid weapon in the holy war.(3) Even to the less doctrinaire, it offers at least a surface plausibility: after all, like cases should be treated alike. If only one out of 100 similar cases results in a death sentence, that sentence certainly seems, on the face of it, arbitrary, irrational, and (in the hyperbole common to death penalty discourse) capricious.(4) The contention of this article is that, contrary to conventional wisdom, comparative proportionality review is constitutionally unwarranted, methodologically unsound, and theoretically incoherent, and, therefore, should be abolished. This is demonstrated in three sections, each of which focuses on a different flaw. After an examination of the nature of proportionality review, Part Two will discuss the erosion of constitutional support for the process. The United States Supreme Court began the modern capital jurisprudence era with a profound error, an error that provided the impetus for proportionality review. Furman v. Georgia(5) strongly suggested that the Eighth Amendment embodies a principle of prosecutorial evenhandedness, i.e., that singling out death for some, but not all, blameworthy defendants, is cruel and unusual punishment.(6) This implied that some sort of review was constitutionally required to ensure evenhandedness in the administration of the death penalty. Gregg v. Georgia(7) reinforced this conclusion by endorsing Georgia's proportionality review statute.(8) Eight years later, however, the Court reversed course; Pulley v. Harris(9) acknowledged that comparative review has no Eighth Amendment foundation. Pulley created an apparent contradiction. On the one hand, in a line of cases starting with Coker v. Georgia,(10) the Supreme Court took the position that, at least for capital cases, the Cruel and Unusual Punishments Clause requires proportionate punishment.(11) On the other hand, as Pulley made abundantly clear, comparative review is not required. Part Two of this Article suggests the solution. Comparative review, deconstitutionalized by Pulley, should be abolished and replaced by more traditional proportionality review of capital cases, what I will call or retributive proportionality review. Such review may properly be used as a check on the legislature should it be tempted to authorize the death penalty for categories of crimes or classes of defendants that, by contemporary standards of decency, do not deserve such harsh punishment. To take a controversial example, a court might hold that death for certain non-homicidal crimes, such as the rape of young children, is disproportionate.(12) Unlike comparative review, however, inherent proportionality review is a test of retribution, not of evenhandedness.(13) It does not demand--nor does the Constitution--that courts engage in the hopeless task of determining whether equally deserving criminals were treated alike. The difficulties of administering comparative review are demonstrated in Part Three. Here we focus on the New Jersey Supreme Court, a tribunal dedicated to equalizing the treatment of capital murderers. Under the tutelage of Professor David Baldus, the New Jersey court committed itself to the most quantitative proportionality review in the United States. An elaborate, time-consuming, and costly methodology was developed--with little to show for the effort. All of the state's death penalty cases, and even hundreds of cases deemed death-eligible (though not capitally charged by prosecutors) were collected, scrutinized, coded, and statistically compared. …