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PROCEDURAL PROPORTIONALITY
William W. Berry III*
INTRODUCTION
“For the love of God, Montresor!”1
In Edgar Allen Poe’s short story “The Cask of Amontillado,”
Montresor takes revenge on his enemy Fortunato.2 He leads the intoxicated
Fortunato deep into the catacombs under the false pretense of a cask of
amontillado.3 As Montresor is about to place the final brick in the wall that
will bury his drunken enemy alive, Fortunato, who finally realizes what is
happening, pleads for mercy, crying out, “For the love of God,
Montresor!”4 Although unsuccessful, he has a final, albeit brief, opportunity
to plead for his life.
In the United States, an unprecedented number of criminal offenders
currently serve life without parole (“LWOP”) sentences.5 Although certain* Assistant Professor of Law and Beccaria Scholar in Criminal Law, University of Mississippi.
D.Phil. Oxford; J.D. Vanderbilt; B.A. Virginia. The Author would like to thank the following for helpful
suggestions and comments at various stages of this project: Meghan Ryan, Lea Johnston, Doug Berman,
John Stinneford, Maximo Langer, Carissa Hessick, Chad Flanders, Dan Markel, Richard Bierschbach,
Jack Wade Nowlin, Farish Percy, Stacy Lantagne, Steve Sheppard, and Laurent Sacharoff; participants
in the 2013 Law & Society Criminal Justice Shadow Conference; participants in the 2013 Southeastern
Association of Law Schools Discussion Group on Vulnerability in the Criminal Justice System; participants in the 2013 American Bar Association Criminal Justice Conference Roundtables; participants in
the 2014 SMU Criminal Justice Conference; and participants at the University of Arkansas Law Faculty
brownbag lunch.
1 EDGAR ALLEN POE, The Cask of Amontillado, in POEMS AND TALES OF EDGAR ALLEN POE
226, 235 (Robert Armistead Stewart ed., 1911).
2 Id.
3 Id. at 227-32.
4 Id. at 235.
5 Ashley Nellis, Throwing Away the Key: The Expansion of Life Without Parole Sentences in the
United States, 23 FED. SENT. REP. 27, 27-28, 31 (2010); see also William J. Bowers & Benjamin D.
Steiner, Death by Default: An Empirical Demonstration of False and Forced Choices in Capital Sentencing, 77 TEX. L. REV. 605, 708-10 (1999); Russell D. Covey, Death in Prison: The Right Death
Penalty Compromise, 28 GA. ST. U. L. REV. 1085, 1120-21 (2012); Michael L. Radelet, The Role of the
Innocence Argument in Contemporary Death Penalty Debates, 41 TEX. TECH L. REV. 199, 212-13
(2008); Benjamin D. Steiner et al., Folk Knowledge as Legal Action: Death Penalty Judgments and the
Tenet of Early Release in a Culture of Mistrust and Punitiveness, 33 LAW & SOC’Y REV. 461, 478
(1999); Elizabeth S. Vartkessian, What One Hand Giveth, The Other Taketh Away: How Future Dangerousness Corrupts Guilt Verdicts and Produces Premature Punishment Decisions in Capital Cases,
32 PACE L. REV. 447, 454 (2012).
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ly not facing as cruel a fate as Fortunato, who will surely die of starvation,
these offenders suffer the condemnation of spending the rest of their lives in
a six-by-eight-foot cell.6 But, unlike Fortunato, such offenders rarely have
an opportunity to plead for the mercy of the court.7
In many cases, these offenders do not even have an opportunity to present mitigating evidence at sentencing.8 The specific plight of such offenders—death in state custody—never receives consideration.9 The sentencing
judge or jury will often never entertain the question of whether the offender
deserves to die in prison and, as such, is irredeemable as a person.10 Indeed,
there is no procedure requiring individualized consideration of their crimes
or their characters.11
In theory, the Fourteenth Amendment’s procedural due process
clause12 should provide such procedural protections at sentencing. In other
words, the level of deprivation at issue—a death-in-custody sentence—
should trigger a certain level of procedure at sentencing.
The Supreme Court, however, rejected such a premise in McGautha v.
California.13 In McGautha, the Court held that capital cases required no
procedures at capital sentencing to guide jury sentencing determinations.14
In essence, the Court established that the Fourteenth Amendment did not
require any procedures with respect to criminal sentencing determinations.15
6 See, e.g., WILBERT RIDEAU & RON WIKBERG, LIFE SENTENCES: RAGE AND SURVIVAL BEHIND
BARS 270 (1992); Eric Schlosser, The Prison-Industrial Complex, ATLANTIC, Dec. 1, 1998, at 51.
7 See, e.g., Rachel E. Barkow, The Ascent of the Administrative State and the Demise of Mercy,
121 HARV. L. REV. 1332, 1359-60 n.123 (2008); Frank O. Bowman, III, The Quality of Mercy Must Be
Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 WIS. L.
REV. 679, 708-09.
8 See Nancy J. King, How Different is Death? Jury Sentencing in Capital and Non-Capital Cases
Compared, 2 OHIO ST. J. CRIM. L. 195, 200 (2004).
9 This is particularly true in cases involving mandatory LWOP sentences, which have proliferated
at both the state and federal levels. See Nellis, supra note 5, at 27-28; AM. CIVIL LIBERTIES UNION, A
LIVING DEATH: LIFE WITHOUT PAROLE FOR NONVIOLENT OFFENSES 20 (2013), available at
https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf.
10 See Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) (citing Roper v. Simmons, 543 U.S. 551,
573 (2005)); see also Graham v. Florida, 560 U.S. 48, 68-69 (2010) (citing Roper, 543 U.S. at 570). As
the Court explained in Miller, “we think that ‘underscores that the statutory eligibility of a juvenile
offender for life without parole does not indicate that the penalty has been endorsed through deliberate,
express, and full legislative consideration.’” Miller, 132 S. Ct. at 2473 (quoting Graham, 560 U.S. at
67).
11 This is in contrast to capital cases, where the Eighth Amendment requires such consideration.
Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion); Woodson v. North Carolina, 428 U.S.
280 (1976) (plurality opinion); see discussion infra Part I.A.
12 While the discussion in this Article is with respect to the Fourteenth Amendment, the same
ideas apply to the Fifth Amendment procedural due process clause as well.
13 402 U.S. 183 (1971), vacated, Crampton v. Ohio, 408 U.S. 941 (1972).
14 Id. at 207 (citing Giaccio v. Pennsylvania, 382 U.S. 399 (1966)).
15 Id.
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One year later, however, the Court adopted many of the protections
that it had rejected in McGautha.16 In Furman v. Georgia,17 the Court held
that the death penalty, as applied, violated the Eighth Amendment because
its procedures resulted in arbitrary sentencing outcomes in capital cases.18
Four years later, the Court confirmed these Eighth Amendment procedural
requirements at sentencing in Gregg v. Georgia,19 affirming new statutory
procedures that narrowed the scope of capital sentencing.20
Furman and Gregg thus cured McGautha’s “mistake” by situating
Fourteenth Amendment procedural concepts under the Eighth Amendment,
defining a punishment imposed without adequate procedures as a “cruel and
unusual” one.21 The migration of this important doctrine from one constitutional provision to another was, on the surface, without consequence, as it
remedied the error of McGautha—providing procedural protections in
death penalty cases.22
The remedy, however, was a limited one. While the Supreme Court
has incorporated some Fourteenth Amendment procedural due process concepts into the Eighth Amendment for capital cases—citing the concept that
“death is different”23—it has never extended such protections to non-capital
cases.24 Indeed, the migration of procedural due process concepts from the
Fourteenth to the Eighth Amendment was incomplete and left a gap in the
form of a complete absence of procedural protections at sentencing in noncapital cases.
16
Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., concurring).
408 U.S. 238 (1972) (per curiam).
18 Id. at 240.
19 428 U.S. 153 (1976) (plurality opinion).
20 Id. at 207.
21 Id.; Furman, 408 U.S. at 240, 256 (Douglas, J., concurring).
22 The Court has applied this doctrine a number of times in capital cases. See, e.g., Tuilaepa v.
California, 512 U.S. 967, 973 (1994); Payne v. Tennessee, 501 U.S. 808, 827 (1991); California v.
Ramos, 463 U.S. 992, 999 (1983); Green v. Georgia, 442 U.S. 95, 97 (1979) (per curiam); Lockett v.
Ohio, 438 U.S. 586, 606 (1978) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 287 n.9
(1976) (plurality opinion).
23 Justice Brennan’s concurrence in Furman v. Georgia, 408 U.S. 238 (1972), is apparently the
origin of the Court’s death-is-different capital jurisprudence. See Furman, 408 U.S. at 286 (Brennan, J.,
concurring) (“Death is a unique punishment in the United States.”); see also Jeffrey Abramson, Deathis-Different Jurisprudence and the Role of the Capital Jury, 2 OHIO ST. J. CRIM. L. 117, 117 n.1 (2004)
(discussing the Court’s death-is-different jurisprudence); Carol S. Steiker & Jordan M. Steiker, Sober
Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109
HARV. L. REV. 355, 370 (1995) (crediting Justice Brennan as the originator of this line of argument).
24 See discussion infra, Part I.A. Indeed, the Court has often reiterated this principle. See, e.g.,
Ring v. Arizona, 536 U.S. 584, 616–17 (2002) (Breyer, J., concurring) (noting that because “death is not
reversible,” DNA evidence that the convictions of numerous persons on death row were erroneous is
especially alarming); Spaziano v. Florida, 468 U.S. 447, 460 n.7 (1984) (“[T]he death sentence is unique
in its severity and in its irrevocability . . . .”); Gregg, 428 U.S. at 187 (plurality opinion) (“There is no
question that death as a punishment is unique in its severity and irrevocability.”); Woodson, 428 U.S. at
305 (plurality opinion) (remarking that death differs from life imprisonment because of its “finality”).
17
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In response to this deficiency, this Article argues for the adoption of
Fourteenth Amendment procedural due process principles into the application of the Eighth Amendment to non-capital cases.25 Specifically, the Article claims that the Eighth Amendment should require minimal procedures
at criminal sentencing related to the severity of the deprivation at issue. To
do this, the Article identifies a series of core procedural rights at sentencing
and proposes a sliding scale model that allocates these procedural rights.
Part I of this Article explains the procedural components of the cruel
and unusual punishment clause and explores the expansion of these principles to non-capital cases. Part II of this Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application. The Article then concludes by articulating the advantages of adopting procedural proportionality.
EXPLORING THE PROCEDURAL COMPONENT OF “CRUEL AND
UNUSUAL”
I.
Requiring procedural protections before administering severe punishments is not a new idea. There is a long history of providing procedures at
sentencing to determine the appropriate criminal sanction.
Sir William Blackstone, for instance, wrote about England’s use of the
“benefit of clergy” prior to executions.26 Relying on the Biblical command
“[t]ouch not mine anointed, and do my prophets no harm,” the benefit of
clergy was originally a provision of English law in which a clergyman
could claim that he was outside the jurisdiction of the secular courts.27 Individuals receiving the benefit of clergy received a trial in ecclesiastical
courts under canonical law.28 The result of this transfer was a diversion
from the secular courts, where capital punishment was a common sentence,
25
This procedural gap is only part of a larger systemic separation between capital and non-capital
cases. See, e.g., Rachel E. Barkow, The Court of Life and Death: The Two Tracks of Constitutional
Sentencing Law and the Case for Uniformity, 107 MICH. L. REV. 1145, 1145 (2009) (acknowledging the
Court’s different treatment of capital cases); Douglas A. Berman, A Capital Waste of Time? Examining
the Supreme Court’s “Culture of Death”, 34 OHIO N.U. L. REV. 861, 861 (2008). As discussed infra,
this separation is less clear than before in light of the Court’s recent juvenile life without parole cases.
Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012); Graham v. Florida, 560 U.S. 48, 102, 103 (2010)
(Thomas, J., dissenting) (“For the first time in its history, the Court declares an entire class of offenders
immune from a noncapital sentence using the categorical approach it previously reserved for death
penalty cases alone. . . . Today’s decision eviscerates that distinction. ‘Death is different’ no longer.”);
William W. Berry III, Eighth Amendment Differentness, 78 MO. L. REV. 1053, 1070-71 (2013) [hereinafter Berry, Eighth Amendment Differentness].
26 4 WILLIAM BLACKSTONE, COMMENTARIES, *365 (italics removed).
27 Id. (quoting another source) (internal quotation marks omitted).
28 Id.
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to the much more lenient venue of the ecclesiastical courts.29 Over time, the
benefit of clergy became available to a broader set of defendants, ultimately
extending to any literate individual.30
In other words, the benefit of clergy, in its various forms, resulted in a
discretionary hearing, in which the court could convert a death sentence to a
far lesser sentence based on some aspect of the offender’s individual character.31 Indeed, it was the association with the church, and later with the
educated, that allowed individuals to receive the benefit of clergy.32
While the benefit of clergy ceased to exist in colonial America, the
modern Eighth Amendment has picked up where the benefit of clergy left
off, developing a series of procedural protections at sentencing, albeit largely restricted to capital cases.33
A.
The Nexus of Procedure and the Eighth Amendment
The Court’s modern application of the Eighth Amendment to the death
penalty conceptualizes procedure as an essential part of determining the
constitutionality of punishments.34 Indeed, at the time of the Court’s landmark decisions in Furman and Gregg, the central concern of the majority of
the Court was whether the procedures used by states at capital sentencing
were sufficient to avoid arbitrary determinations.35
29
Id. at *368.
To prove literacy, offenders had to read Psalm 51: Miserere mei, Deus, secundum
misericordiam tuam (O God, have mercy upon me, according to thine heartfelt mercifulness). See JOHN
BRIGGS ET AL., CRIME AND PUNISHMENT IN ENGLAND: AN INTRODUCTORY HISTORY 62 (1996). Over
time, even illiterate offenders were able to receive the benefit of clergy by memorizing the “neck verse,”
thereby literally saving their necks from hanging. See also Richard B. Morris, Benefit of Clergy in
America and Related Matters, 105 U. PA. L. REV. 436, 436 (1957) (book review).
31 4 BLACKSTONE, supra note 26, at *368.
32 Id. at *366-67.
33 See Furman v. Georgia, 408 U.S. 238, 376-77 n.2 (1972) (Burger, C.J., dissenting).
34 Indeed, I have argued elsewhere that the preoccupation with procedure partially explains the
persistence of the death penalty in the United States. See William W. Berry III, American Procedural
Exceptionalism: A Deterrent or a Catalyst for Death Penalty Abolition?, 17 CORNELL J.L. & PUB.
POL’Y 481, 483 (2008); see generally Jonathan Yehuda, Note, Tinkering with the Machinery of Death:
Lethal Injection, Procedure, and the Retention of Capital Punishment in the United States, 88 N.Y.U. L.
REV. 2319 (2013) (applying Berry theory to methods of execution).
35 Gregg v. Georgia, 428 U.S. 153, 193-95 (1976) (plurality opinion); Furman v. Georgia, 408
U.S. 238, 277 (1972) (Brennan, J., concurring) (citing Trop v. Dulles, 356 U.S. 86, 100 (1958)).
30
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McGautha, Furman, and the Incorporation of Procedure into the
Eighth Amendment
In McGautha v. California and its companion case, Crampton v.
Ohio,36 the Supreme Court considered whether the use of the death penalty
in California and Ohio violated the Fourteenth Amendment’s requirement
of procedural due process.37 Specifically, the Court examined whether the
use of a unitary jury and the absence of jury guidance at sentencing violated
the due process rights of the defendants.38 In rejecting the petitioners’
claims, the Court held that due process did not require bifurcation between
the trial and sentencing.39 The Court similarly held that there was no requirement that states provide any particular level of guidance to juries regarding sentencing in capital cases.40 After McGautha, then, the Fourteenth
Amendment failed to provide any procedural rights at capital sentencing,
leaving the states with unfettered discretion to structure their capital sentencing.41
Just a year later, in Furman v. Georgia, the Supreme Court considered
an almost identical claim—that the process by which states sentenced capital defendants was arbitrary—but assessed it under the Eighth Amendment’s prohibition against cruel and unusual punishments, rather than under
the Fourteenth Amendment.42 Holding 5-4 that Georgia’s death penalty
scheme, as applied, violated the Eighth Amendment, the Court identified a
number of procedural shortcomings that created the constitutional deficiency.43 Ironically, most of these were the same concerns the Court had disregarded in McGautha.44 Specifically, the Court in Furman cited the absence
of jury guidance at capital sentencing.45 The lack of intelligible standards
for determining which offenders ought to receive the death penalty resulted,
from the Court’s perspective, in an unacceptable degree of arbitrariness and
randomness in sentencing.46 Further, the failure to bifurcate trials in many
jurisdictions resulted in a compromised position for the defendant with the
unenviable choice of having to argue innocence or argue for a non-capital
sentence.47
36
408 U.S. 941 (1972) (consolidated with McGautha v. California).
McGautha, 402 U.S. at 196.
38 Id. at 196, 207-09.
39 Id. at 213.
40 Id. at 207-08.
41 Id. at 221.
42 Furman v. Georgia, 408 U.S. 238, 285-86 (1972) (Brennan, J., concurring); U.S. CONST.
amend. VIII.
43 Furman, 408 U.S. at 303-06 (Brennan, J., concurring).
44 McGautha, 402 U.S. at 207-08, 213.
45 Furman, 408 U.S. at 294-95 (Brennan, J., concurring).
46 Id. at 295.
47 Id. at 286.
37
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Four years later, in Gregg v. Georgia, the Supreme Court validated
this idea that the Eighth Amendment imposed procedural requirements at
capital sentencing, finding that the procedures adopted by Georgia made its
capital system constitutional.48 Specifically, the Court concluded that the
new procedures offered adequate safeguards against arbitrary sentences.49
These safeguards included the adoption of aggravating factors used to narrow the class of individuals eligible for the death penalty, proportionality
review of jury verdicts by the state supreme court to promote consistency in
sentencing, and the bifurcation of capital trials using separate sentencing
hearings.50
After Furman and Gregg, many of the same procedural due process
requirements rejected in McGautha now applied at sentencing.51 The difference was that, as a quirk of the Court’s cases, the procedural protections
arose under the Eighth Amendment, not the Fourteenth.52 Of course, the
Court never addressed whether similar protections would apply in noncapital cases, as these three cases involved capital punishment.53 In light of
its death-is-different trope, however, the Court never explored such an application. Presumably, if the Court had decided McGautha differently, it
would have extended the procedural due process protections to non-capital
sentences. As explained below, the doctrine of procedural due process is a
sliding scale, not a bright-line rule. The consequence, then, of migrating
procedural protections from the Fourteenth to the Eighth Amendment was a
narrowing of their application to capital cases.54 Ironically, this appears to
be more of a constitutional common law accident than an intentional doctrinal narrowing.
2.
Modern Applications
In the aftermath of Furman and Gregg, the Supreme Court decided a
number of cases that further defined what procedures the Eighth Amendment required.55 The result of twenty years of “tinker[ing] with the machin-
48
Gregg v. Georgia, 428 U.S. 153, 206-07 (1976) (plurality opinion).
Id. at 206.
50 Id. at 163-66.
51 Id. at 206-07; Furman, 408 U.S. at 294-95 (Brennan, J., concurring); McGautha v. California,
402 U.S. 183, 207-08, 213 (1971), vacated upon rehearing, Crampton v. Ohio, 408 U.S. 941 (1972).
52 Gregg, 428 U.S. at 168 (plurality opinion); Furman, 408 U.S. at 285-86 (Brennan, J., concurring).
53 Gregg, 428 U.S. at 161 (plurality opinion); Furman, 408 U.S. at 239 (per curiam); McGautha,
402 U.S. at 185.
54 Barkow, supra note 25, at 1164-65.
55 See infra notes 60-77 and accompanying text.
49
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ery of death”56 was a series of Eighth Amendment procedural requirements,57 albeit only applicable to capital cases.58
56
Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting on denial of certiora-
ri).
57
It is worth noting that the Court also has a long history of rejecting claims for various procedural protections under the Eighth Amendment. See generally, e.g., Harris v. Alabama, 513 U.S. 504 (1995)
(holding that the Eighth Amendment does not require the state to define the weight the sentencing judge
must give to an advisory jury verdict); Tuilaepa v. California, 512 U.S. 967 (1994) (upholding the
constitutionality of California’s death sentence procedures, with specific regard to the “special circumstances” consideration); Romano v. Oklahoma, 512 U.S. 1 (1994) (holding that the admission of a
defendant’s death sentence in a prior trial during the sentencing phase of his second capital trial did not
violate the Eighth Amendment); Johnson v. Texas, 509 U.S. 350 (1993) (rejecting petitioner’s claim that
Penry v. Lynaugh required separate instruction on the question regarding his youth in the sentencing
phase of his capital trial); Arave v. Creech, 507 U.S. 463 (1993) (finding that Idaho’s aggravating circumstance asking the jury to consider the “utter disregard for human life” was not vague in contravention of the Eighth Amendment); Payne v. Tennessee, 501 U.S. 808 (1991) (holding that the Eighth
Amendment does not prohibit the sentencing jury from considering victim impact statements); Franklin
v. Lynaugh, 487 U.S. 164 (1988) (plurality opinion) (concluding that the trial court’s refusal to give
petitioner’s requested special instructions did not violate his Eighth Amendment right to present mitigating evidence); Lowenfield v. Phelps, 484 U.S. 231 (1988) (holding that a death sentence does not violate
the Eighth Amendment simply because the single statutory aggravating circumstance found by the jury
duplicates an element of the underlying offense of first-degree murder); McCleskey v. Kemp, 481 U.S.
279 (1987) (finding that statistical evidence of a profound racial disparity in application of the death
penalty was insufficient to invalidate defendant’s death sentence); Cabana v. Bullock, 474 U.S. 376
(1986) (holding that the fact-finding required to prove that the defendant killed, attempted to kill, or
intended that a killing take place or that lethal force be used, need not be made by a fact-finder at trial
and sentencing, but can be made by trial courts or state appellate courts); Baldwin v. Alabama, 472 U.S.
372 (1985) (holding that Alabama’s death penalty statute, which required jurors to return a non-binding
death sentence upon finding the defendant guilty of certain aggravated crimes, but allowed the trial
judge to decide punishment after independent consideration of defendant and crime, did not violate the
Eighth Amendment); Glass v. Louisiana, 471 U.S. 1080 (1985) (ruling by denying certiorari that the use
of electrocution does not violate the Eighth Amendment); Spaziano v. Florida, 468 U.S. 447 (1984)
(holding that Florida’s law allowing a judge to override the jury’s recommendation of life in prison did
not constitute double jeopardy, and did not violate the Eighth Amendment requirement of reliability in
capital sentencing); Pulley v. Harris, 465 U.S. 37 (1984) (holding that there was no constitutional requirement for a proportionality review of sentences in comparable cases throughout a state); Zant v.
Stephens, 462 U.S. 862 (1983) (affirming the Georgia Supreme Court’s ruling that the failure of one
aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported by
other aggravating circumstances); Wainwright v. Goode, 464 U.S. 78 (1983) (per curiam) (upholding a
death sentence despite the trial court’s reliance on aggravating factors not available under state law);
California v. Ramos, 463 U.S. 992 (1983) (holding that the Eighth and Fourteenth Amendments do not
prohibit an instruction permitting a capital sentencing jury to consider the governor’s power to commute
a life sentence without possibility of parole); Barclay v. Florida, 463 U.S. 939 (1983) (plurality opinion)
(upholding petitioner’s death sentence despite the trial judge’s inappropriate consideration of prior
criminal history); Barefoot v. Estelle, 463 U.S. 880 (1983) (holding that psychiatric testimony regarding
future dangerousness of defendant was admissible at sentencing hearing in a capital trial).
58 See Barkow, supra note 25, at 1162-63.
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Eighth Amendment Procedural Requirements
On the same day it decided Gregg, the Supreme Court adopted another
important procedural requirement in capital cases: individualized sentencing consideration.59 In Woodson v. North Carolina,60 the Court held that
mandatory death sentences violated the Eighth Amendment.61 The absence
of a procedure by which to consider the individualized characteristics of the
offender and the offense made the imposition of a death sentence a cruel
and unusual punishment.62
Four years later in Lockett v. Ohio,63 the Court broadened this procedural requirement, striking down an Ohio statute.64 The Court held in Lockett that in order to engage in the individualized consideration of the offender at capital sentencing, the Eighth Amendment proscribed any restriction
on the introduction of mitigating evidence.65 In Green v. Georgia,66 the
Court emphasized the broad nature of the Lockett rule, holding that the exclusion of evidence at the sentencing phase, based upon Georgia’s hearsay
rule, was unconstitutional.67 The same was true in Eddings v. Oklahoma,68
where the Court found that the sentencing court had violated the defendant’s rights when it refused to consider the defendant’s turbulent family
59
See Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (plurality opinion).
428 U.S. 280 (1976) (plurality opinion).
61 Id. at 301 (citing Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)). The Court also
decided Roberts v. Louisiana the same day, reaching the same conclusion with respect to a Louisiana
mandatory death penalty statute. See Roberts v. Louisiana, 428 U.S. 325, 335 (1976) (plurality opinion).
62 As Justice Stewart explained,
A process that accords no significance to relevant facets of the character and record of the
individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating
factors stemming from the diverse frailties of humankind. It treats all persons convicted of a
designated offense not as uniquely individual human beings, but as members of a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of death.
Woodson, 428 U.S. at 304 (plurality opinion).
63 438 U.S. 586 (1978).
64 Chief Justice Burger explained,
[A] statute that prevents the sentencer in all capital cases from giving independent mitigating
weight to aspects of the defendant’s character and record and to circumstances of the offense
proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.
Id. at 605 (plurality opinion). The Court reached a similar decision in a companion case, Bell v. Ohio,
vacating a death sentence because the Ohio statute precluded consideration of facts and circumstances
proffered as mitigating circumstances. Bell v. Ohio, 438 U.S. 637, 642 (1978) (citing Lockett, 438 U.S.
at 597-609 (plurality opinion)).
65 See Lockett, 438 U.S. at 605 (plurality opinion). The Ohio statute at issue restricted the introduction of mitigating evidence to certain statutorily defined mitigating factors. Bell, 438 U.S. at 642.
66 442 U.S. 95 (1979) (per curiam).
67 Id. at 97 (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).
68 455 U.S. 104 (1982).
60
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history as a mitigating factor.69 Similarly, where there is jury confusion
about whether jury findings require a unanimous finding on each of the
applicable mitigating circumstances, the Court has held that it violates the
rule in Lockett.70
As with mitigating factors, the Court has interpreted the Eighth
Amendment to regulate the use of aggravating factors. Specifically, the
Court has struck down death sentences as violating the Eighth Amendment
where the statutory aggravating factor is unconstitutionally vague, 71 where
the application of the aggravating circumstance was unconstitutionally
vague,72 and where the aggravating factor was a prior conviction invalidated
on appeal.73
In addition to the requirements of aggravating and mitigating circumstances and individualized consideration of all available mitigating evidence, the Court has also interpreted the Eighth Amendment to require a
level of procedural reliability prior to imposition of the death penalty. 74 In
Caldwell v. Mississippi,75 for instance, the Court reversed a death sentence
because of a comment by the prosecutor during closing arguments that incorrectly suggested that the state supreme court, and not the jury, had the
responsibility of determining the appropriateness of a death sentence.76 Similarly, the Eighth Amendment requirement of reliability in death sentencing
determinations prohibited the use of a confidential pre-sentence report by
the trial court.77
It is clear from these cases that the Court views the Eighth Amendment’s prohibition against cruel and unusual punishments to include at least
some procedural dimension. In other words, the process of the trial or sentencing has served as the basis for vacating a death sentence on the grounds
that the flaw in procedure made the imposition of the punishment “cruel
and unusual.”
69
Id. at 116.
Mills v. Maryland, 486 U.S. 367, 384 (1988).
71 Richmond v. Lewis, 506 U.S. 40, 52 (1992).
72 Espinosa v. Florida, 505 U.S. 1079, 1082 (1992) (per curiam); Maynard v. Cartwright, 486 U.S.
356, 363 (1988); Godfrey v. Georgia, 446 U.S. 420, 433 (1980) (plurality opinion).
73 Johnson v. Mississippi, 486 U.S. 578, 586-87 (1988).
74 In rare instances, the Court has also looked to other constitutional provisions as reasons for
striking down death sentences on procedural grounds. See Ring v. Arizona, 536 U.S. 584, 609 (2002)
(holding that failure of the jury to find a fact that made the defendant death-eligible violated his Sixth
Amendment rights); Lankford v. Idaho, 500 U.S. 110, 127 (1991) (citing Herring v. New York, 422
U.S. 853, 862 (1975); United States v. Cardenas, 917 F.2d 683, 688-89 (2d Cir. 1990)) (finding that the
sentencing process violated the Due Process clause because the appellant was not given adequate notice
that the judge might sentence him to death); Bullington v. Missouri 451 U.S. 430, 446 (1981) (finding
that the imposition of a death sentence at a defendant’s second capital trial, after the defendant was
originally sentenced to life in prison, violated the Fifth Amendment’s double jeopardy clause).
75 472 U.S. 320 (1985).
76 Id. at 340-41.
77 Gardner v. Florida, 430 U.S. 349, 362 (1977) (plurality opinion).
70
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Graham and Miller as Procedural Cases
In addition to the procedural requirements applicable in capital cases,
the Court arguably adopted procedural requirements with respect to sentencing juveniles to LWOP in Graham v. Florida78 and Miller v. Alabama.79
Although much of the scholarship in the aftermath of Graham explored the
implications of the case through a substantive lens,80 Professor Richard
Bierschbach has astutely argued that Graham, in many ways, was a procedural decision, in that it mandated the adoption of parole for juvenile offenders in non-homicide cases.81
By prohibiting LWOP sentences in non-homicide cases, then, Graham
requires a second sentencing procedure to determine whether the offender
should remain in custody, or, in the alternative, receive a term sentence
with a fixed date of release.82 In other words, the Eighth Amendment re78
560 U.S. 48 (2010).
132 S. Ct. 2455 (2012).
80 See generally Neelum Arya, Using Graham v. Florida to Challenge Juvenile Transfer Laws, 71
LA. L. REV. 99 (2010); Rachel E. Barkow, Categorizing Graham, 23 FED. SENT’G REP. 49 (2010); Mary
Berkheiser, Death Is Not So Different After All: Graham v. Florida and the Court’s “Kids Are Different” Eighth Amendment Jurisprudence, 36 VT. L. REV. 1 (2011); William W. Berry III, More Different
than Life, Less Different than Death: The Argument for According Life Without Parole Its Own Category of Heightened Review Under the Eighth Amendment After Graham v. Florida, 71 OHIO ST. L.J. 1109
(2010) [hereinafter Berry, More Different than Life]; Tamar R. Birckhead, Graham v. Florida: Justice
Kennedy’s Vision of Childhood and the Role of Judges, 6 DUKE J. CONST. L. & PUB. POL’Y. 66 (2010);
Cara H. Drinan, Graham on the Ground, 87 WASH. L. REV. 51 (2012); Richard S. Frase, Graham’s
Good News—and Not, 23 FED. SENT’G REP. 54 (2010); Youngjae Lee, The Purposes of Punishment
Test, 23 FED. SENT’G REP. 58 (2010); Dan Markel, May Minors Be Retributively Punished After Panetti
(and Graham)?, 23 FED. SENT’G REP. 62 (2010); Terry A. Maroney, Adolescent Brain Science After
Graham v. Florida, 86 NOTRE DAME L. REV. 765 (2011); Eva S. Nilsen, From Harmelin to Graham—
Justice Kennedy Stakes Out a Path to Proportional Punishment, 23 FED. SENT’G REP. 67 (2010); Richard M. Ré, Can Congress Overturn Graham v. Florida?, 34 HARV. J.L. & PUB. POL’Y 367 (2010); Alice
Ristroph, Hope, Imprisonment, and the Constitution, 23 FED. SENT’G REP. 75 (2010); Alison Siegler &
Barry Sullivan, “‘Death Is Different’ No Longer”: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences, 2010 SUP. CT. REV. 327; Robert Smith & G. Ben Cohen,
Redemption Song: Graham v. Florida and the Evolving Eighth Amendment Jurisprudence, 108 MICH. L.
REV. FIRST IMPRESSIONS 86 (2010); Carol S. Steiker & Jordan M. Steiker, Graham Lets the Sun Shine
In: The Supreme Court Opens a Window Between Two Formerly Walled-Off Approaches to Eighth
Amendment Proportionality Challenges, 23 FED. SENT’G REP. 79 (2010); The Supreme Court, 2009
Term—Leading Cases, 124 HARV. L. REV. 179 (2010); Leslie Patrice Wallace, “And I Don’t Know Why
It Is That You Threw Your Life Away”: Abolishing Life Without Parole, The Supreme Court in Graham
v. Florida Now Requires States to Give Juveniles Hope for a Second Chance, 20 B.U. PUB. INT. L.J. 35
(2010); John “Evan” Gibbs, Note, Jurisprudential Juxtaposition: Application of Graham v. Florida to
Adult Sentences, 38 FLA. ST. U. L. REV. 957 (2011).
81 See generally Richard A. Bierschbach, Proportionality and Parole, 160 U. PA. L. REV. 1745
(2012); see also Graham, 560 U.S. at 74.
82 Iowa Governor Terry Branstad, for instance, commuted all of the juvenile LWOP sentences
affected by Graham to sixty-year sentences. Mike Wiser, Branstad Commutes Life Sentences for 38
79
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quires certain procedures—at minimum, some kind of parole or second
sentencing hearing—prior to mandating the death of a juvenile in prison for
a non-homicide crime.83
Miller arguably took this application of procedure to non-capital juvenile sentences a step further, prohibiting the imposition of mandatory
LWOP sentences on juvenile offenders.84 The procedural requirement here,
for a juvenile offender in a homicide case,85 is that the court—and not the
legislature—make the sentencing determination.86
After Graham and Miller, then, the Supreme Court has adopted, albeit
in narrow circumstances, two procedural sentencing rules in non-capital
cases. The first, from Miller, specifies a situation in which the court must
impose the sentence, with the corollary rule prohibiting a type of mandatory
sentence.87 The second, from Graham, creates a requirement that the court
or a parole board revisit the life sentence of a certain type of offender at a
later date.88
In light of the Court’s robust sentencing procedures in capital cases
and its apparent willingness to adopt procedural sentencing limitations in
juvenile LWOP cases, the question becomes whether the Court should apply additional procedural restrictions at sentencing, and if so, where such
restrictions should originate. As explored below, the principles of procedural due process provide a logical source of procedural sentencing rules that
can address the competing concerns of fairness in sentencing and judicial
efficiency.
First, though, it is necessary to explain why, at least as a matter of procedure, the Court should expand the Eighth Amendment beyond its prior
bounds of death-is-different.89
Iowa Juvenile Murderers, GAZETTE (July 16, 2012), http://thegazette.com/2012/07/16/branstad-com
mutes-life-sentences-for-38-iowa-juvenile-murderers/.
83 This is exactly the decision the European Court of Human Rights made in Vinter. Vinter v.
United Kingdom, App. Nos. 66069/09, 130/10, & 3896/10, at 42-43 (Eur. Ct. H.R. July 9, 2013), available at http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=001-122664# (holding that LWOP sentences violated the human rights of the offenders).
84 Miller, 132 S. Ct. at 2469-70.
85 Graham would, of course, prohibit juvenile LWOP sentences in non-homicide cases. See Graham, 560 U.S. at 74.
86 Miller, 132 S. Ct. at 2473-75.
87 Id.
88 Graham, 560 U.S. at 75, 82.
89 Indeed, as I have suggested elsewhere, there is a question as to whether the “two-track” system
of criminal justice should remain, particularly after Miller and Graham. See, e.g., William W. Berry III,
The Mandate of Miller, 51 AM. CRIM. L. REV. 327, 338-48 (2014) [hereinafter Berry, The Mandate of
Miller]; Berry, More Different than Life, supra note 80, at 1137-38; see also Barkow, supra note 25, at
1146; Berman, supra note 25, at 868-76.
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Exploring the Death-is-Different Paradigm
As mentioned above, the Court has long held that death is different,
and as a result, death sentences deserve higher judicial scrutiny. But the
Court has never explored the question of whether non-capital sentences
nonetheless can be death sentences. This Subsection explores that question.
1.
Why Death-in-Custody Sentences Are Death Sentences Too
The Court’s application of the Eighth Amendment, as others have noted, has been the story of two virtually separate approaches: one for capital
cases, and one for non-capital cases.90 As indicated above, this bright-line
distinction reflected the Supreme Court’s determination that death is different; that is, the unique severity and finality of a death sentence warranted its
own set of heightened standards and procedural protections.91 While on
some level this differentiation makes sense, the gap in application between
capital and non-capital cases is extreme.92 Indeed, the practical effect of the
development of a robust set of procedural safeguards for capital cases93 has
been the complete neglect of similar standards for non-capital cases.94 The
current framework is not one where the capital procedures are superfluous
and the non-capital procedures are robust.95 Rather, the capital procedures
seem to reflect a minimum standard that non-capital cases transgress.96
Indeed, the basic difference between death penalty cases and all other
cases becomes more suspect upon further examination. In practice, the distinction between capital sentences and other death-in-custody sentences97 is
90
See Barkow, supra note 25, at 1146; Berman, supra note 25, at 868-76.
See supra note 23 and accompanying text.
92 See Barkow, supra note 25, at 1146; Berman, supra note 25, at 868-76.
93 Note that such robustness may be more in theory than practice. As James Liebman’s work has
demonstrated, the error rate in capital cases is almost 70 percent. See Andrew Gelman et al., A Broken
System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. EMPIRICAL
LEGAL STUD. 209, 216-17 (2004).
94 See Berry, Eighth Amendment Differentness, supra note 25, at 1064-65; Nancy Gertner, Miller
v. Alabama: What It Is, What It May Be, and What It Is Not, 78 MO. L. REV. 1041, 1044-47 (2013)
(symposium keynote remarks).
95 See Berry, Eighth Amendment Differentness, supra note 25, at 1064-65; Gertner, supra note 94,
at 1044-47.
96 See Berry, Eighth Amendment Differentness, supra note 25, at 1064-65; Gertner, supra note 94,
at 1044-47.
97 Death-in-custody sentences are sentences in which the result of the sentence is that the offender
dies in the custody of the government. This includes death sentences, life-without-parole sentences, and
term of years sentences that exceed the life expectancy of the offender. I have used this terminology in
other places as well. Berry, The Mandate of Miller, supra note 89, at 329.
91
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often non-existent, with the vast majority of death row inmates dying of
natural causes in prison, just like those serving LWOP sentences.98
Importantly, the adoption of the death-is-different principle predates
the widespread adoption of LWOP, and as a result, does not contemplate
such sentences.99 Without the option of LWOP, the gap between all other
non-capital sentences and capital sentences expands.
But LWOP sentences share many characteristics with death sentences.
For both the sentence is identical: death in state custody. The only difference is the method—by lethal injection as opposed to natural causes. And
with less than sixty inmates executed annually, the death row population
and the LWOP population become, on many levels, functionally indistinguishable.100
Simply put, LWOP is a type of death sentence.101 As a result, it makes
little sense to have two sets of rules for offenders who face the same practical consequence: dying in state custody.
Another way of thinking about this is in terms of differentness.102
While the death penalty is certainly “different” from other sentences, it is
less “different” with respect to other LWOP sentences, such that the distinction should not be as significant.103 Indeed, LWOP sentences are more “different” from other non-capital sentences than the death penalty is “different” from LWOP sentences.104 The relative sameness, then, of the death
penalty and LWOP (or alternatively, the difference in comparative differentness), warrants similar constitutional treatment.
2.
Procedure Is Particularly Important in LWOP Cases
As a matter of application to substantive Eighth Amendment limitations, then, I have argued elsewhere for an expansion of limits to LWOP
98 See Tracy L. Snell, Capital Punishment, 2012 – Statistical Tables, BUREAU JUST. STAT., U.S.
DEP’T JUST. 2 n.1, 20 tbl.17 (May 2014), http://www.bjs.gov/content/pub/pdf/cp12st.pdf (noting that of
8,374 individuals sentenced to death, only 1,320 were actually executed between 1973-2012, and that
478 individuals died of natural causes in custody).
99 The rise in LWOP sentences coincides with the Court’s decision in Furman. See Schick v.
Reed, 419 U.S. 256, 267 (1974) (holding that a no-parole condition on a sentence does not violate the
Constitution); Furman v. Georgia, 408 U.S. 238, 285-91 (1972) (Brennan, J., concurring) (determining
that because of unusual severity, enormity, and finality, death is “uniquely degrading to human dignity”
compared with other punishments). See generally Julian H. Wright, Jr., Note, Life-Without-Parole: An
Alternative to Death or Not Much of a Life at All?, 43 VAND. L. REV. 529, 534 (1990).
100 See generally Executions by Year, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo
.org/executions-year (last updated Dec. 10, 2014).
101 As indicated below, this also applies to term sentences that approach the offender’s life expectancy. See infra Part I.B.2.
102 See generally Berry, Eighth Amendment Differentness, supra note 25.
103 Id. at 1072.
104 Id. at 1070-72.
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and juvenile LWOP.105 Certainly, the Court should expand its holding in
Miller to bar all uses of juvenile LWOP.106 Similarly, at least some of the
substantive limitations on the use of the death penalty should also apply to
adult LWOP.107
Again, the case for such an expansion to LWOP rests upon the idea
that the sentence itself is a type of death sentence. Surely, at least in some
situations, LWOP should warrant similar constitutional protections as the
death penalty. Because the death penalty is less different with respect to
LWOP, the former death-is-different dichotomy collapses, or at the very
least, trifurcates.108
The case for procedural expansion is even stronger than that of the
substantive Eighth Amendment restrictions. First, the absence of a normative dimension makes such an incursion upon the principle of death-isdifferent easier to justify.109 As with the consideration of the death penalty
under Furman and Gregg, the Court was hesitant to make a normative
judgment that the death penalty was a cruel and unusual punishment.110 Instead, the Court focused on the procedure by which states administered the
death penalty.111
The same reality is true here. Substantive restrictions as to LWOP require normative determinations that such punishments are, by their nature,
cruel and unusual punishments. Procedural restrictions, on the other hand,
require no such determinations. Procedural requirements simply set the
rules; substantive requirements control the outcomes. The former is an easier sell.
105 See Berry, The Mandate of Miller, supra note 89, at 329-30; see also Berry, More Different
than Life, supra note 80, at 1112-13.
106 The Court indicated as much in Miller, suggesting that it was a future possibility. Miller v.
Alabama, 132 S. Ct. 2455, 2469 (2012) (“But given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon. . . . Although we
do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into
account how children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.”).
107 See Berry, The Mandate of Miller, supra note 89, at 329-30, 338-41; see also Berry, More
Different than Life, supra note 80, at 1114-21.
108 Berry, More Different than Life, supra note 80, at 1123-31.
109 Id. at 1126-27.
110 Berry, Eighth Amendment Differentness, supra note 25, at 1062.
111 That does not mean, of course, that the Court has been unwilling to create certain proscriptive
carve-outs under the Eighth Amendment. See, e.g., Miller, 132 S. Ct. at 2475 (mandatory LWOP sentences for juveniles are unconstitutional); Graham v. Florida, 560 U.S. 48, 74-75 (2010) (LWOP sentences for juveniles in non-homicides are unconstitutional); Kennedy v. Louisiana, 554 U.S. 407, 413
(2008) (death penalty sentences for rapes of children when offender did not intend to kill and did not kill
victim are unconstitutional); Roper v. Simmons, 543 U.S. 551, 574 (2005) (death sentences for juveniles
are unconstitutional); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (death sentences for mentally handicapped offenders are unconstitutional).
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Second, the procedural requirements at sentencing are in some ways
equally important in LWOP cases and death penalty cases. As indicated,
when the outcome is identical—death in state custody—there is little reason
to differentiate so starkly between the procedural requirements in death and
LWOP cases. And in capital cases, the likelihood of thorough review on
appeal is much higher, and the reversal rate much higher.112 The unique
nature of death penalty cases, then, results in many courts reviewing the
initial trial court determination.113 The absence of such robust review in
LWOP cases on appeal suggests that LWOP cases might require more procedural protections than capital cases, just to treat them somewhat similarly.114
Third, the kind of distinction that results between death sentences and
other death-in-custody sentences is such that procedural sentencing protections are equally necessary in LWOP cases. The seriousness of the deprivation—death in state custody—makes the use of such safeguards all the
more necessary.
3.
Revising the Death-is-Different Principle
In light of the similarities between death and other death-in-custody
sentences, it is clear that the bright line between the death penalty and these
other sentences, at the very least, has dimmed.115 On some level, the Court’s
decisions in Graham and Miller indicate as much.116
On the other hand, a capital sentence is very different from a criminal
fine for shoplifting. Obliterating the death-is-different concept entirely ignores fundamental differences in severity between sentences. One logical
response would be to trifurcate the death-is-different concept into three
categories: death sentences, death-in-custody sentences, and all other noncapital sentences.
Even better, though, would be to simply connect the procedural protection to the level of severity at issue. In other words, the required level of
procedure would reflect the level of deprivation. This would be particularly
helpful, as the capital/non-capital divide is not the only important division
among sentencing alternatives. The difference between serving time in
prison and probation, for instance, can have monumental importance in the
life of a young offender. Certainly, adopting a two-sizes-fit-all model (capi112
Berry, More Different than Life, supra note 80, at 1125.
See Berry, The Mandate of Miller, supra note 89, at 342-43.
114 See id.
115 One possibility is that the line between capital and non-capital sentences still remains, but is
less clear, like the back line in the batter’s box late in a baseball game.
116 See Berry, More Different than Life, supra note 81, at 1111, 1122; see also Berry, The Mandate
of Miller, supra note 89, at 328, 335.
113
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tal and non-capital) ignores many of the distinctions between non-capital
offenders.
Employing a zero-sum game in this context—capital or non-capital—
becomes increasingly shortsighted in light of the increasing range of criminal penalties.117 Not only is a death sentence less different than it used to be
in light of its increasing similarity to LWOP, but critical differences exist
among non-capital sentences that are worth considering.118
Instead of assuming that death sentence cases are the important ones,
and largely ignoring the procedural requisites of non-capital cases, states
should carefully consider the ways in which procedure can enhance accuracy in sentencing. Requiring specific inquiries, even in low-level non-capital
cases, can improve the sentencing process substantially.119
Revisiting the death-is-different concept, at least with respect to sentencing procedures, then, is the first step in opening the door to a more
thoughtful approach to sentencing. And procedural due process provides an
interesting and insightful model for applying heightened procedures to sentencing.
C.
The Promise of Procedural Due Process
In light of this history of Eighth Amendment procedural restrictions,
the broader question is whether they should enjoy a wider application. A
brief examination of the application of procedural due process in civil cases
demonstrates the possibility of creating multiple levels of procedures at
sentencing that would correspond to the level of deprivation at issue. Indeed, absent the historical “accident” of McGautha, this idea might be a
reality rather than a possibility.120
In civil cases, the Fourteenth Amendment due process clause places
restrictions on the government’s ability to interfere in private affairs, requiring such safeguards as prior notice, an adequate hearing, an unbiased decision maker, and some justification for its action.121 Where the government
offers a hearing in lieu of a trial, the due process question is whether the
hearing sufficiently balances the importance of the citizen’s liberty or property interest and the economic administration and associated risk of mistake.122
117 Bruce Moyer, Overcriminalization Concerns Emerge on Capitol Hill, FED. BAR ASS’N (July
2014), http://www.fedbar.org/Advocacy/Washington-Watch/WW-Archives/2014/July-2014-Overcrimin
alization-Concerns-Emerge-on-Capitol-Hill.aspx.
118 Berry, The Mandate of Miller, supra note 89, at 340.
119 Id. at 345-46.
120 Corinna Barrett Lain, Furman Fundamentals, 82 WASH. L. REV. 1, 14 (2007).
121 See, e.g., John Paul Jones, Procedural Due Process, in 4 ENCYCLOPEDIA OF THE SUPREME
COURT OF THE UNITED STATES 116, 116 (David S. Tanenhaus ed., 2008).
122 Id. (citing Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976)).
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The Court’s procedural due process cases have made clear that the
concept of due process is a flexible one, not susceptible to a precise definition.123 Nonetheless, different schools of thought have developed in the academic literature as to the proper approach.124
The first of these approaches to procedural due process is a legislativecentric approach.125 In this vein, positivists have viewed the concept of procedural due process as simply an extension of the legislative process. 126
Under this view, courts should play no role in determining what process is
due.127 Rather, the courts should simply determine whether any procedures
mandated by the legislature have received their “due.”128
While for some, this approach has purchase under the Fourteenth
Amendment, the Court’s Eighth Amendment capital cases clearly reject the
idea that the Court must defer to legislatively mandated procedures.129 Rather, the Court has made clear, at least in capital cases, that it is the arbiter
of what procedures are necessary to make the imposition of the death penalty constitutional.130
An alternative approach is a judicial-centric approach that views the
role of the Court as determining the adequacy of the process provided given
the deprivation at issue.131 Over time, the Court’s cases have moved in a
judicial-centric direction.132
In the civil context, the Court’s cases have evolved from an initial
case-by-case intuitive application of due process to a more mechanical bal-
123
“[D]ue Process is flexible and calls for such procedural protections as the particular situation
demands.” Schweiker v. McClure, 456 U.S. 188, 200 (1982) (alteration in original) (quoting Morrissey
v. Brewer, 408 U.S. 471, 481 (1972)) (internal quotation marks omitted).
124 Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of
Procedural Due Process, 95 YALE L.J. 455, 455-56 (1986).
125 See id. at 457-58.
126 See, e.g., Frank H. Easterbrook, Substance and Due Process, 1982 SUP. CT. REV. 85, 98, 103.
127 Id. at 125; see also RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF
THE FOURTEENTH AMENDMENT 193-214 (1977). The late Chief Justice Rehnquist was a strong supporter of this position. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 561 (1985)
(Rehnquist, J., dissenting) (stating that the Court “ought to recognize the totality of the State’s definition
of the property right”); Arnett v. Kennedy, 416 U.S. 134, 155 (1974) (plurality opinion) (“[P]roperty
interest which appellee had in his employment was itself conditioned by the procedural limitations
which had accompanied the grant of that interest.”).
128 Edward L. Rubin, Due Process and the Administrative State, 72 CALIF. L. REV. 1044, 1071
n.141 (1984).
129 See, e.g., Gregg v. Georgia, 428 U.S. 153, 175-76 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238, 267-68 (1972) (Brennan, J., concurring).
130 See supra note 57 and accompanying text.
131 See Redish & Marshall, supra note 124, at 468.
132 Some have argued that such shifts indicate the presence of a juris-centric spiral in which the
Court’s decisions create a feedback loop making the shift from legislative to judicial constitutional
interpretation a social norm.
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ancing test.133 The former determined the outcome largely based on its sense
of fairness, although it masked such determinations in weighing both the
need to defer to the state legislative standards and other available objective
indicia.134 The latter resulted in a more formalized balancing test that became explicit in the Court’s decision in Mathews v. Eldridge.135 In
Mathews, the Court explained,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.136
The Court has thus employed a balancing approach in which it weighs the
deprivation and its corresponding need for accuracy against the resulting
burden on the state of adopting such a procedure.137
Unlike the legislative-centric approach, this judicial-centric approach
mirrors what the Court has done in the capital punishment context.138 As the
Court explained in Lockett v. Ohio, there can be “no perfect procedure for
deciding in which cases governmental authority should be used to impose
death.”139 In other words, the Court has recognized, in both contexts, the
need to balance the interests of the individual suffering the deprivation and
the administrative and fiscal costs to the state.140 In the Fourteenth Amendment context, the Court has developed a range of cases that exhibit the
proper balancing of interests.141 In the Eighth Amendment context, it has
cabined the approach to capital cases.142
133
See Redish & Marshall, supra note 124, at 470.
The Court did try “manfully to avoid” resting its decisions on nothing but the personal preferences of the justices. Sanford H. Kadish, Methodology and Criteria in Due Process Adjudication—A
Survey and Criticism, 66 YALE L.J. 319, 327, 344 (1957). Ironically, this mirrors the Court’s approach
to the evolving standards of decency doctrine under the Eighth Amendment. See William W. Berry III,
Following the Yellow Brick Road of Evolving Standards of Decency: The Ironic Consequences of
“Death-is-Different” Jurisprudence, 28 PACE L. REV. 15, 21 (2007).
135 424 U.S. 319 (1976). Interestingly, the Court enunciated this balancing test in the same year
that it assessed the constitutionality of several state death penalty statutes written in response to its
decision in Furman. See Lain, supra note 120, at 55-57.
136 Mathews, 424 U.S. at 335 (citing Goldberg v. Kelly, 397 U.S. 254, 263-71 (1970)).
137 Id. at 348.
138 Lockett v. Ohio, 438 U.S. 586, 603-04 (1978) (plurality opinion) (citing Woodson v. North
Carolina, 428 U.S. 280, 304 (1976)).
139 Id. at 605.
140 See id.
141 Troxel v. Granville, 530 U.S. 57, 65-66 (2000) (plurality opinion) (citing several cases in which
the Court applied the Fourteenth Amendment to civil matters).
142 Barkow, supra note 25, at 1150-51.
134
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Therefore, in articulating the proper way to expand the Eighth
Amendment to mirror the Fourteenth, it is worth considering several other
fundamental precepts beyond the simple balancing of interests. To that end,
Professors Redish and Marshall have some helpful suggestions.143
First, for procedural due process to function adequately, it requires adjudicatory independence, with the decision maker possessing the authority,
apart from the legislature, to apply a balancing test.144 In the capital context,
this is not an issue, as judges typically oversee the capital sentencing procedure.145 When extended to non-capital criminal cases, however, mandatory
sentences often impede the Court’s ability to make a procedural determination at sentencing, as mandatory sentences foreclose the use of certain procedures.146 In such cases, an expanded Eighth Amendment would encourage
judges to assess the degree to which the mandatory nature of the sentence
has unconstitutionally deprived offenders of procedural due process rights
at sentencing.147 Thus, application of the Eighth Amendment to non-capital
sentencing requires an independent adjudicator.148
Second, there is the need for a floor—a baseline of procedures that apply in a given context.149 In other words, certain deprivations require certain
procedures. To that end, the model developed below establishes baseline
procedures—articulated in terms of protected rights—necessary to satisfy
the Eighth Amendment’s procedural requirements.150
Finally, the application of procedural due process implies a level of
accuracy in its implementation.151 To achieve that goal, the possibility of
certain deprivations will require a minimal level of procedure.152 The use of
aggravating and mitigating factors in capital cases purports to achieve this
end—making the determination of who receives the death penalty more
“accurate” by narrowing the class of eligible murderers and considering
their individualized circumstances.153 The idea, then, in non-capital cases
would be to require certain procedures at sentencing in cases in which the
accuracy of the outcome would improve.
As with the application of the balancing test in Mathews, the goal of
procedural due process is to preserve the individual’s dignitary interest by
143
See Redish & Marshall, supra note 124, at 474-76.
Id. at 475-76.
145 See Gregg v. Georgia, 428 U.S. 153, 190-93 (1976) (plurality opinion).
146 Berry, The Mandate of Miller, supra note 89, at 333.
147 Id. at 329-30.
148 See Redish & Marshall, supra note 124, at 491.
149 Id. at 472.
150 See infra Part II.A.
151 See infra Part II.A.3.
152 See infra Part II.B.
153 It is questionable whether these procedures do anything to improve accuracy, particularly
because states have developed such broad categories of aggravating factors. See William W. Berry III,
Practicing Proportionality, 64 FLA. L. REV. 687, 701 (2012).
144
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according him or her adequate process to ensure fairness.154 This theme
dovetails nicely with the Court’s earliest explanations of the meaning of the
Eighth Amendment.155 As the Court explained in Trop v. Dulles,156 “[t]he
basic concept underlying the Eighth Amendment is nothing less than the
dignity of man.”157
Thus, under the Fourteenth Amendment’s procedural due process requirement, the required process increases as the seriousness of the liberty or
property interest increases.158 The hearing required, for instance, in firing a
tenured employee is more significant than the procedure required in docking an employee one vacation day as a punishment for misconduct.159 Likewise, where a procedure is unduly expensive or superfluous, it is unlikely
that procedural due process will require it.160
With respect to criminal punishments, this same idea has purchase. As
the available punishment increases at sentencing, so should the level of
procedure required under the Eighth Amendment. The link between the
extent of the deprivation and the process required should mirror the approach to procedural due process in the civil context, where the values at
stake—the nature of the liberty or property interest deprived—correspond
with the level of required procedure. And when additional procedure offers
little in the way of improved outcomes and/or drastically increases the economic cost, such procedure may be unnecessary at criminal sentencing.
While the interest of an offender at sentencing is a liberty one, criminal trials require a different set of procedural rights to protect such an interest. As the potential deprivation increases, so does the need to protect these
rights at sentencing.
The theory of “procedural proportionality,” articulated below, maps
out this potential relationship between possible deprivation and procedural
rights at sentencing.161 This theory first answers the question of what procedural rights must exist at sentencing by identifying five key rights.162 The
154
Richard B. Saphire, Specifying Due Process Values: Toward a More Responsive Approach to
Procedural Protection, 127 U. PA. L. REV. 111, 114-25 (1978); see Mathews v. Eldridge, 424 U.S. 319,
335 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 263-71 (1970)).
155 See Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion); Weems v. United States, 217
U.S. 349, 367 (1910).
156 356 U.S. 86 (1958) (plurality opinion).
157 Id. at 100.
158 See Goldberg, 397 U.S. at 262-63 (citing Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123, 168 (1951) (Frankfurter, J., concurring)).
159 See Diane Ravitch, Tenure Is a Guarantee of Due Process to Prevent Capricious Firings, N.Y.
TIMES (June 12, 2014), http://www.nytimes.com/roomfordebate/2014/06/11/does-tenure-protect-badteachers-or-good-schools/tenure-is-a-guarantee-of-due-process-to-prevent-capricious-firings.
160 See Mathews v. Eldridge, 424 U.S. 319, 347-48 (1976).
161 See infra Part II.
162 Note that the theory only addresses the sentencing question. Procedural rights at trial, and the
core question of guilt or innocence, are not part of the approach advocated here.
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theory then addresses the question of what procedures are proportional to
the potential deprivation, delineating a sliding scale that links the rights to
the sentencing question.163
II.
PROCEDURAL PROPORTIONALITY
Building on the example of procedural due process and the history of
procedural rights arising under the Eighth Amendment, this Article proposes the adoption of “procedural proportionality” at sentencing. As explained
below, the idea is for the procedural requirements to reflect the extent of
deprivation the offender faces at sentencing. The greater the deprivation,
the more procedural safeguards are necessary.
The first question is what procedures should exist at sentencing. The
second is how the sliding scale should work. This Part addresses each of
these questions in turn.
A.
Procedural Rights
When a convicted offender faces sentencing, a core procedural question is the degree to which the offender can participate in the hearing and
have an opportunity to speak on his or her behalf.164 The two extremes of
such an opportunity are (1) mandatory sentences and (2) capital sentencing
hearings.165
In cases involving mandatory sentences, the offender has no role at
sentencing.166 The legislature determines what the mandatory punishment
for a particular offense shall be, and the offender receives the predetermined punishment.167 A lesser but similar limitation on the offender’s ability to participate at sentencing occurs in cases involving mandatory mini-
163
See infra Part II.B.
See Saphire, supra note 154, at 125.
165 See William W. Berry III, Discretion Without Guidance: The Need to Give Meaning to § 3553
After Booker and its Progeny, 40 CONN. L. REV. 631, 633 (2008) [hereinafter Berry, Discretion Without
Guidance].
166 See id. at 643 (describing the application of the Federal Sentencing Guidelines).
167 Historically, sentencing commissions would also fall in this category, but after Apprendi, Booker, and Blakely, such a model violates the Sixth Amendment rights of the offender. See United States v.
Booker, 543 U.S. 220, 226-27 (2005) (holding that mandatory federal sentencing guidelines violated the
Sixth Amendment); Blakely v. Washington, 542 U.S. 296, 305 (2004) (holding that mandatory state
sentencing guidelines violated the Sixth Amendment); Apprendi v. New Jersey, 530 U.S. 466, 476
(2000) (holding that any fact raising the statutory maximum, other than a prior conviction, must be
proven to the jury beyond a reasonable doubt).
164
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mum sentences.168 In such cases, the offender might be able to present mitigating evidence, but the mandatory minimum nonetheless provides a floor
that the Court will not transgress.169
In capital cases, on the other hand, the offender enjoys an almost unfettered ability to offer mitigating evidence and receive individualized consideration by the court.170 At the opposite extreme of mandatory sentences,
the Court has established that in capital cases, “the fundamental respect for
humanity underlying the Eighth Amendment requires consideration of the
character and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process of
inflicting the penalty of death.”171
As indicated below, the concept of procedural proportionality contemplates that, as one moves from one end of the spectrum (mandatory sentences)172 to the other (unfettered individualized consideration of mitigating
evidence), the severity of the available punishment at sentencing would
increase.173
Before situating a sliding scale on the range of available procedural
rights at sentencing, it is important to describe such rights and their value to
offenders. It is worth noting that on their face, some of these procedural
rights are not absolute, but vary with respect to the deprivation at issue, as
discussed below. A fine for speeding, for instance, might not require full
implementation of one or more of the procedures described below. In addition, the rights are not completely distinct; there is certainly some overlap
between the categories of procedural protections articulated herein.
168 Ian Weinstein, Fifteen Years After the Federal Sentencing Revolution: How Mandatory Minimums Have Undermined Effective and Just Narcotics Sentencing, 40 AM. CRIM. L. REV. 87, 94-95
(2003).
169 It is true that the offender can participate with respect to mandatory sentences in the sense that
he can choose to enter a plea bargain for a lesser sentence if the prosecutor makes one available, but
there is no real participation in the sentencing phase of the process with mandatory sentences.
170 Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Woodson v. North Carolina, 428
U.S. 280, 304 (1976) (plurality opinion).
171 Woodson, 428 U.S. at 304 (plurality opinion) (citation omitted); see also Lockett, 438 U.S. at
604 (plurality opinion).
172 See infra Part II.B. While one criticism of this approach would be its constitutional limitation
on legislative use of mandatory sentences, I am not alone in thinking that might be a good thing. See,
e.g., Cassia Spohn, Criticisms of Mandatory Minimums, in PRINCIPLED SENTENCING: READINGS ON
THEORY AND POLICY 279, 279 (Andrew von Hirsch et al. eds., 3d ed. 2009); Gary T. Lowenthal, Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform, 81 CAL. L.
REV. 61, 65 (1993) (arguing that mandatory minimums still cause unwarranted sentencing disparity and
have untoward effects on the processing of criminal cases); John S. Martin, Jr., Why Mandatory Minimums Make No Sense, 18 NOTRE DAME J.L. ETHICS & PUB. POL’Y 311, 312 (2004) (listing reasons why
judges oppose mandatory minimums); Weinstein, supra note 168, at 88, (arguing that the power shift
from mandatory minimums has damaged the adversary system and ultimately wrought injustice).
173 See infra Part II.B.
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Mitigation at Sentencing
The first and most fundamental right that offenders can possess at sentencing is the right to present mitigating evidence.174 Mitigating evidence, as
described here, refers to any evidence that an offender can present that has
the potential to reduce the sentence imposed by the court.175
Such mitigating evidence can take a number of different forms.176 The
offender can offer evidence about his childhood, occupation, family, or
quality of life.177 This kind of evidence generally falls in one of two categories: (1) evidence lessening the culpability of the offender in some way or
(2) evidence demonstrating the life that incarceration will forfeit, including
the offender’s responsibilities and the effect of the sentence on others.178
The first category can demonstrate that the offender is a victim.179 The
offender’s prior experience of physical or sexual abuse, particularly during
childhood, provides powerful evidence that lessens his blameworthiness in
some instances.180 On the opposite end of the spectrum, an offender can
demonstrate his contributions to society as a basis for excusing, at least in
some way, his criminal conduct and lessening the sentence imposed.181 Prior
military service, particularly if such service was heroic, is an example of
this kind of evidence, as are other contributions to the good of society at
large.182
The second category operates in a similar way, defining the offender
as a responsible, upstanding contributor to his family or community.183 Alternatively, evidence of the offender’s role as a husband and/or father can
serve as a basis for mitigating his sentence because of its likely negative
effect on his family, even if he does not possess a strong character.184
174
See Lockett, 438 U.S. at 604 (plurality opinion) (citing Woodson, 428 U.S. at 304 (plurality
opinion)).
175 See generally 21A AM. JUR. 2D Criminal Law § 894.
176 It is worth noting that scholars differ concerning the types of such evidence that are appropriate
to present at sentencing, with views often shaped by the preferred theory of punishment. See, e.g., Julian
V. Roberts, Punishing, More or Less: Exploring Aggravation and Mitigation at Sentencing, in
MITIGATION AND AGGRAVATION AT SENTENCING 1, 3, 14-15 (Julian V. Roberts ed., 2011). This Article
is agnostic on that question, focusing on enabling mitigation generally, particularly because the criminal
justice system in the United States does not foreclose consideration of both utilitarian and retributive
purposes of punishment. See, e.g., 18 U.S.C. § 3553 (2012); Berry, Discretion Without Guidance, supra
note 165, at 669.
177 See Jeffrey L. Kirchmeier, A Tear in the Eye of the Law: Mitigating Factors and the Progression Toward a Disease Theory of Criminal Justice, 83 OR. L. REV. 631, 673-81 (2004).
178 Id. at 658-64, 673-81.
179 Id. at 658-64.
180 Id. at 675 n.229.
181 Id. at 664.
182 Id. at 663 n.196.
183 Kirchmeier, supra note 177, at 662 n.194.
184 Id. at 659 n.184.
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Scholars disagree on the appropriateness of various types of mitigating
evidence, with such views often relating to their favored conception of the
purposes of punishment.185 As the Supreme Court has emphasized, however,
there should be no restrictions on the use of relevant mitigating evidence in
capital cases, in light of the severity of the sentence.186
2.
Individualized Consideration
Coupled with mitigation, individualized consideration is a central right
potentially accorded to offenders at sentencing.187 The concept of individualized consideration, as developed in Woodson v. North Carolina, posits
that, in certain cases, the sentence should account for the offender’s particular situation.188 In other words, the court seeks to avoid applying a sentence
based solely on the category of offense,189 and instead considers whether the
individual characteristics of the offender and the offense warrant a lesser
sentence.190 Generally speaking, the appropriate inquiry directly relates to
what the court believes to be the applicable purpose of punishment.191 As
courts have not explicitly adopted a predominant purpose of punishment,192
the analysis below includes all potential versions of individualized consideration.
The individualized consideration is the application of mitigating193
facts and circumstances related to the offender and the offense, regardless if
raised at trial or at sentencing.194 With respect to the offense, individualized
consideration requires careful examination of the particular facts and circumstances of the crime.195 Such an inquiry looks at the culpability of the
offender, both in terms of mental state and in terms of level of participation
185
See Roberts, supra note 176, at 17-18.
Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion).
187 See Sentencing, Probation, and Parole, 75 GEO. L. J. 1129, 1172 (1987).
188 See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion) (citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937)).
189 Id. at 301. In many states and in the federal system, the level of offense combines the crime
with the prior criminal history of the offender.
190 Id. at 304 (citing Williams v. New York, 337 U.S. 241, 247-49 (1949); Furman v. Georgia, 408
U.S. 238, 402-03 (1972) (Burger, C.J., dissenting)).
191 See RICHARD S. FRASE, JUST SENTENCING: PRINCIPLES AND PROCEDURES FOR A WORKABLE
SYSTEM 7-10 (2013).
192 One could argue that limiting retributivism is the majority view with respect to purposes of
punishment, but even so, it is a hybrid approach that combines retributive and utilitarian purposes of
punishment. See generally id.; NORVAL MORRIS, THE FUTURE OF IMPRISONMENT (1974).
193 It is certainly true that individualized consideration might result in a harsher sentence, such as if
certain aggravating facts increase the culpability of the offender.
194 Woodson, 428 U.S. at 304 (plurality opinion) (citing Pennsylvania ex rel. Sullivan v. Ashe, 302
U.S. 51, 55 (1937)).
195 Id.
186
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in the crime.196 In addition, the harm caused by the offender is relevant to
individualized consideration at sentencing.197
Similarly, individualized consideration of the offender himself requires an examination of the personal characteristics of the offender.198 This
includes evidence of the offender’s character that reduces his culpability,
such as events in the offender’s childhood, the age of the offender, history
of addictions or substance abuse, evidence of good character, or other circumstances that mitigate his blameworthiness.199 In addition, individualized
consideration evidence of personal characteristics can speak to the key sentencing questions of utilitarian purposes of punishment.200 Individualized
consideration, for instance, could reduce the court’s determination of the
dangerousness of the offender, the offender’s capacity for rehabilitation,
and/or the likelihood that a sentence will achieve general or specific deterrence.201
Given the modern understanding of the widespread nature of mental
illness in society, individualized consideration becomes increasingly important.202 The advantage of individualized consideration is that it focuses
the court on the need to tailor the sentence specifically to the offender. Further, individualized consideration of the offender and offense also increases
accuracy at sentencing, rather than lumping offenders who might be very
different into the same sentence term.
In practice, affording the offender individualized consideration means
that the court instructs the jury to consider (or considers itself) the individual circumstances of the offender and the offense. It likewise precludes any
mandatory sentences, which, by definition, exclude any such consideration.
3.
Accuracy
A third type of procedural right is accuracy. Accuracy here does not
refer to guilt or innocence. Rather, accuracy in this context refers to accuracy in sentencing—the degree to which a sentence is appropriate given the
nature of the criminal offense and the relevant characteristics of the offender.203 For many sentences, the purposes of punishment could provide a basis
for making such a determination. A retributively predisposed judge or jury,
196
See Berry, Discretion Without Guidance, supra note 165, at 641 n.48.
Id.
198 Id.
199 Id.
200 See Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937).
201 Id.
202 See John M. Fabian, Death Penalty Mitigation and the Role of the Forensic Psychologist, 27
LAW & PSYCHOL. REV. 73, 90 (2003).
203 See Brandon L. Garrett, Accuracy in Sentencing, 87 S. CAL. L. REV. 499, 516 (2014) (citing 28
U.S.C. § 991(b) (2012); 18 U.S.C. § 3553(a)(1) (2012)).
197
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for instance, could assess what an offender’s just deserts would be for particular levels of harm caused and of offender culpability.204 Similarly, a
court preferring utilitarian purposes of punishment could assess the offender’s level of dangerousness, the offender’s capacity for and likely time for
rehabilitation, and/or the sentence needed to deter others from committing
similar crimes.205
The reliability question would ask, in light of one or more of these
purposes, whether the sentence was accurate.206 In the context of retribution,
the question would be whether the sentence equaled the offender’s just deserts.207 For the utilitarian purposes, it would similarly explore the degree to
which the sentence fit the time needed to achieve the utilitarian purpose—
safety, rehabilitation, or deterrence.208
The obvious problem with using the purposes of punishment in this
manner is that their ability to be accurate is limited.209 Calculating one’s just
deserts is achievable in theory if done in a comparative manner.210 But no
ordinal sentence corresponds to a particular offense, even if one considers
culpability and harm.211 The best one can do is to find an appropriate sentencing range.
Likewise, calculating temporal sentence lengths using utilitarian purposes of punishment is, at best, a speculative enterprise. Measuring an offender’s future dangerousness is an enterprise fraught with difficulty, particularly if one seeks to obtain a high level of accuracy. The time it will take
for the rehabilitation of an offender, such that he or she can rejoin society,
is also hard to determine with any level of temporal accuracy. Finally, determining how long a particular offender should serve to deter others (without making the sentence excessive to that purpose) seems hard to determine
with any specific level of accuracy.
Indeed, the longer the sentence, the more difficult the exercise of sentencing in light of the purposes of punishment becomes. Deciding that an
offender deserves two years instead of one year has a much greater potential for accuracy than deciding thirty years is more deserved than twentyfive. The same is true for the utilitarian purposes—the longer the sentence,
the more difficult the prediction.
If one focuses on the accuracy of criminal sentences, movement toward death-in-custody sentences—the death penalty, LWOP, term sentences extending beyond life expectancy—renders the purposes of punishment
204
See Berry, Discretion Without Guidance, supra note 165, at 662.
Of course, without choosing one predominant purpose of punishment, the conflict in purposes
could create serious problems. Id. at 663 (citing 18 U.S.C. § 3553(a)).
206 Id.
207 Id.
208 Id. at 636-37.
209 Id. at 637.
210 See Berry, Discretion Without Guidance, supra note 165, at 667.
211 Id. at 643.
205
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ineffectual. For many nations, such sentences violate human rights, making
the highest available sentence a term of thirty years.212 As a result, significant sentence compression occurs, with crimes above a certain level of severity all receiving the same punishment even though the levels of desert
vary significantly between crimes.213
Because making an accurate determination is virtually impossible in
such cases, the purposes of punishment are not an effective tool to ensure
the reliability of sentences for the most serious crimes. As the American
experience with the death penalty demonstrates, the ability to achieve any
level of consistency in such cases is very difficult.214
While accuracy at sentencing, then, seems to be an elusive concept, as
a matter of due process, one can at least ensure that the court asks the right
questions. For less serious offenses, these may include the purposes of punishment as indicated above, without opining as to whether retributive or
utilitarian questions are better.
For more serious offenses, though, two safeguards should exist. First,
as with the death penalty, there should be some aggravating factor requirement for any sentence that results in the offender condemned to die in prison. The state should reserve those sentences for the most serious crimes and
offenders. Second, the court should consider the core question of whether
the sentence is appropriate for the offender, given the circumstances of the
crime and the situation of the offender. In other words, the judge or jury
should be cognizant of the consequence of the sentence and carefully consider whether such a sentence is necessary.215
Such an approach would have particular importance in LWOP cases.
Courts often impose LWOP sentences without ever making a determination
that condemnation to death in prison is the appropriate sentencing outcome.216 The presence of mandatory minimum sentences is partially, but not
alone, to blame for this phenomenon. Many states have abolished parole,
and as a result, life sentences, which used to last twenty to thirty years, are
now, in fact, life sentences.217 Also, LWOP sentences are often the chosen
212 See Rodrigo Labardini, Life Imprisonment and Extradition: Historical Development, International Context, and the Current Situation in Mexico and the United States, 11 SW. J.L. & TRADE AM. 1,
33 (2005).
213 Id. at 28-29.
214 Indeed, Justice Stewart likened the use of the death penalty to being “struck by lightning,” and
the modern study of its use has led many to the same conclusion over thirty years later. Furman v. Georgia, 408 U.S. 238, 309 (1972) (Stewart, J., concurring).
215 Individualized sentencing determinations and consideration of mitigating circumstances are, of
course, an important part of this inquiry. See Craig S. Lerner, Life Without Parole as a Conflicted Punishment, 48 WAKE FOREST L. REV. 1101, 1103 (2013) (describing the “profound harshness” of both the
death penalty and LWOP sentences).
216 Id. (stating that the imposition of LWOP sentences in the United States has “soared . . . as the
death penalty has waned”).
217 See Paul J. Larkin, Jr., Parole: Corpse or Phoenix?, 50 AM. CRIM. L. REV. 303, 315 (2013).
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alternative to the death penalty, and are the only alternative in some jurisdictions.218 In many of these cases, no one—judge or jury—decides that the
appropriate sentence for the person is death in custody as opposed to some
lesser sentence.
In practice, then, the court should instruct the jury in serious cases to
consider the ultimate question: whether the offender should die in custody
(whether by lethal injection or natural causes). In less serious cases, the
court should sentence the offender based upon the purposes of punishment.
Again, this approach forecloses mandatory sentences, because such sentences limit the court’s ability to sentence the offender accurately.
4.
Reliability
A category of procedural right similar to accuracy is reliability. Here,
reliability means that the sentencing hearing procedure prevented the judge
or jury from considering information or evidence that would undermine the
fundamental fairness of the hearing. Prejudicial statements, presentation of
irrelevant evidence by the government that unduly prejudices the proceeding, and circumstances that confuse the court or jury in such a way as to
undermine the validity of the sentence are all examples of situations that
can compromise reliability.
Thus, where elements of the trial or sentencing impair the judge or jury in making an unbiased determination with respect to the sentence, the
procedure becomes poisoned. The presence of such indicia threatens the
reliability of the sentencing determination. In LWOP cases, for instance, a
jury’s belief that the court will revisit the sentence at a later date contaminates the sentencing decision because it rests upon a false understanding.
In practice, the procedure here requires setting aside the sentencing
hearing and having a new one in situations where the hearing becomes
compromised. For sentencing by the court, most procedural corrections will
be the result of appellate review. In cases involving jury sentencing, however, the judge can set aside the hearing if elements of the hearing undermine the fairness of the sentencing determination.
5.
Mercy
One step beyond consideration of mitigating evidence and individualized consideration of the offense and offender is the consideration of mercy
at sentencing.219 With respect to retributive just deserts punishments, mercy
218
See Lerner, supra note 216, at 1103.
See generally Stephen P. Garvey, “As the Gentle Rain from Heaven”: Mercy in Capital Sentencing, 81 CORNELL L. REV. 989 (1996); Stephen Gillers, The Quality of Mercy: Constitutional Accu219
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is inappropriate, by definition, because it gives the offender less than his
level of desert.220 Indeed, the point of mercy is to give an offender a sentence less than he deserves.221
Despite the controversial nature of mercy, it is paramount in cases
concerning deprivations that involve death sentences.222 As the Court has
explained,
[A] statute that prevents the sentencer in all capital cases from giving independent mitigating
weight to aspects of the defendant’s character and record and to circumstances of the offense
proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that
risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth
Amendments.223
While historically the executive, and not the judiciary, has often controlled the decision of whether to extend mercy, this does not prohibit according the same power to courts.224 The rationale for this is two-fold. First,
in the modern criminal justice framework, the judge or jury at sentencing
plays a direct role in both the guilt and sentencing proceedings, while the
executive does not. As a result, the former can consider information when it
is fresh and first presented. The latter, on the other hand, will often not have
(or take) the opportunity to review the material until many years later.
Second, the modern trend among governors and presidents is to choose
not to exert clemency power in many cases.225 The few who do exercise
clemency power tend to do so at the very end of their term, when the political consequence is least.226 Thus, practically speaking, the executive branch,
in many cases, does not offer a real chance to plead for mercy.
As a result, the ability to plead for mercy at sentencing remains an important right, if only to give an offender his “day in court.” The idea of depriving an offender of his life—whether by the death penalty or by death in
prison—without the ability to plead for mercy strikes at the heart of the
principle that procedures are relevant to the question of whether a punishment is cruel and unusual.
racy at the Selection Stage of Capital Sentencing, 18 U.C. DAVIS L. REV. 1037 (1985); Eric L. Muller,
The Virtue of Mercy in Criminal Sentencing, 24 SETON HALL L. REV. 288 (1993).
220 Dan Markel, Against Mercy, 88 MINN. L. REV. 1421, 1454 (2004).
221 Id. at 1422 n.1.
222 And while the Court established this principle of pleading for mercy only in the context of
capital cases, it surely also should apply to death-in-custody cases given the similarity of death and
death-in-custody cases. See supra Part I-B.
223 Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion).
224 See Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981).
225 See Hugo Adam Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. REV.
L. & SOC. CHANGE 255, 263 (1990-91).
226 See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the
King, 69 TEX. L. REV. 569, 608-09 (1991).
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In practice, the relevant procedure here is simply to allow the offender
to plead for mercy—to have his day in court.
B.
The Sliding Scale
Having articulated the relevant rights at sentencing, the next question
is how those rights ought to apply. In other words, one must determine
which deprivations require which rights. Following the model of civil procedural due process cases described above, the concept of procedural proportionality developed here couples certain procedures with certain deprivations. The basic rule is that the more serious the deprivation is, the more
complex and involved the procedure should be.
While it is certainly possible to delineate narrow, subtle differences
between categories of procedure, the aim of this proposal is to focus on the
areas where additional procedure at sentencing would make the most difference. Assessing the range of criminal sentences, two fault lines emerge.
First, there seems to be a significant difference between a sentence to die in
state custody and one where the offender will eventually have an opportunity to become free again. Thus, the highest group of procedural protections
at sentencing should apply in cases involving the possibility of death-incustody sentences.
Second, there seems to be a significant difference between sentences
in which the state takes the offender into custody and sentences where the
offender receives probation, or some lesser punishment. The experience of
spending a period of time in jail or prison thus warrants certain procedural
protections, albeit lesser ones than cases involving the possibility of deathin-custody.
In addition, it is important to note that the theory of procedural proportionality is attempting only to propose constitutional minimums—the minimum required procedure to prevent the imposition of a cruel and unusual
punishment.
1.
The First Fault Line: Death-in-Custody Sentences
At the first fault line, all of the procedural rights articulated above
should apply. Contrary to the death-is-different tradition of the Court, each
of these procedures is necessary before imposing a death-in-custody sentence.
First, with respect to mitigation, the Supreme Court has made clear
that limits on the use of mitigation evidence, even if it is irrelevant, violates
the offender’s Eighth Amendment rights in capital cases.227 The reason is
227
See supra note 65 and accompanying text.
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that, before deciding to execute someone, the Court believes that an offender ought to have no limits on their ability to argue for their life.228
It is not clear why a sentence to die in prison should be any different.
The deprivation in such cases, while not a scheduled lethal injection, is similar in that the offender will die in prison. Indeed, as highlighted above, the
lethal injection will not happen in most cases, and as a result, the sentences
are virtually identical.229
There is also no reason why this should not extend to offenders who
face a term sentence that exceeds their life expectancy. While it is possible
that they will outlive their sentence, in most cases it is remote. Their sentencing hearing, then, serves the same purpose—it is their final opportunity
to put on evidence before the state sends them away to die in prison.
Offenders facing death-in-custody sentences, whether in the form of
capital punishment, LWOP, or term sentences that individually or cumulatively exceed the offender’s life expectancy, should have the procedural
right to introduce mitigating evidence, without restriction, during sentencing.
Second, offenders facing death-in-custody sentences should have the
procedural right of individualized consideration of their character and the
offense committed at sentencing. Similar in many ways to mitigating evidence, the concept of individualized consideration means that the court or
jury must consider what sentence this offender, in light of all of the evidence presented at sentencing, should receive.230
Typically, the two impediments to individualized consideration are (1)
limits on mitigation and (2) mandatory sentences.231 The problem with limiting mitigation in the context of individualized circumstances is that it impairs the ability of the judge or jury to consider the specific aspects of the
crime at issue and the personal characteristics of the offender.232 In such
situations, the judge or jury will rely on a more generalized understanding
of the type of crime.233 With lesser offenses, this may be less of a problem,
but when the life of the offender is at stake in a case involving a potential
death-in-custody sentence, it is paramount to ensure procedural fairness.
Similarly, mandatory sentences preclude assessment of the individualized characteristics of the offense and the offender. Such one-size-fits-all
approaches are perhaps acceptable with lesser crimes, but heighten the possibility of injustice in cases involving death-in-custody sentences. Ignoring
228
See Lockett, 438 U.S. at 604-05 (plurality opinion).
See supra note 98 and accompanying text.
230 See supra note 194 and accompanying text.
231 See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion) (citing Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937)); see also supra note 169 and accompanying text.
232 See Woodson, 428 U.S. at 304 (plurality opinion).
233 See William W. Berry III, Mitigation in Federal Sentencing in the United States, in
MITIGATION AND AGGRAVATION AT SENTENCING , supra note 176, at 274, 247-51.
229
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the individual characteristics of the offender and offense to impose a sentence of death, whether by lethal injection or imprisonment, assumes much
and ignores circumstances that may warrant a different outcome. Indeed,
the stakes are too high to simply presume that every offender who commits
a particular transgression should receive a particular sentencing outcome,
particularly when that outcome is some kind of death-in-custody.
Finally, instructing the jury or reminding the court of the need to consider individualized circumstances is a third aspect of ensuring procedural
proportionality for offenders facing potential death-in-custody sentences.
Emphasizing the unique nature of the offense and the offender will help the
judge or jury avoid making pro forma sentencing decisions, and will instead
encourage the judge or jury to more deeply investigate the facts and circumstances underlying the offense and the personal characteristics of the
offender.
Giving these procedural rights credence in terms of individualized
consideration thus means three things: (1) eliminating limits on mitigation,
(2) abolishing mandatory death-in-custody sentences, and (3) instructing
the jury or the court to consider individualized circumstances.
Third, accuracy is an important procedural right in cases in which a
death-in-custody sentence is at issue. While considering mitigating evidence and making an individualized determination are certainly a part of
making an accurate sentencing determination, the procedural right, as discussed above, is more robust.234
Given the limits of the purposes of punishment with respect to deathin-custody sentences, the procedure advocated here is to require the court to
ask the key questions with respect to the sentence. Specifically, the court
should ask whether the offender deserves to die in prison and whether the
offender is irredeemable as a person. While this question seems obvious, as
indicated above, courts and/or juries almost never ask it prior to the imposition of death-in-custody sentences, with the exception of the death penalty.235
Fourth, reliability is an important procedural right at sentencing as
well. This, in most cases, involves making sure that nothing unfairly prejudices the decision-making process.236 In particular, statements that misrepresent the sentencing outcome, most often in the capital context, threaten
the reliability of the decision because it becomes based on an erroneous
understanding.237
Needless to say, reliability in sentencing is paramount when the consequence of an error is a death-in-custody sentence. At the very least, then,
234
See supra Part II.A.3.
See supra note 216 and accompanying text.
236 See supra Part II.A.4.
237 See supra Part II.A.4.
235
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the parameters by which a judge or jury sentences an offender to a death-incustody sentence must be reliable and consistent with applicable law.
In practice, the application of this procedural protection occurs in the
policing of the sentencing hearing, typically by an appellate court.238 In addition, the trial court can intervene in situations where a jury sentences the
offender and the hearing prejudiced this determination in an inappropriate
manner.239
Finally, the ability to plead for mercy is a critical procedural right at
sentencing in cases where death in custody is a possible sentence. If the
punishment one faces is permanent exile from society, the opportunity to
plead for one’s life seems an essential part of according an offender some
level of human dignity. While it is true that clemency from the governor
remains a possibility, offenders are highly unlikely to have an opportunity
to personally interact with that decision maker.240 Indeed, the sentencing
hearing is the offender’s last and best chance to avoid a terminal fate—
death in the custody of the state.241
While many sentencing hearings afford such an opportunity, one class
of cases overtly proscribes the opportunity to plead for mercy: mandatory
sentences.242 In such cases, where the judge or jury lacks discretion to impose a lesser sentence, the imposition of the mandatory sentence denies the
offender the opportunity to make any kind of supplication for mercy.243
2.
The Second Fault Line: Custodial Sentences
A second area where the imposition of procedure makes a big difference is the fault line between custodial and non-custodial sentences. In other words, in cases where the judge has the discretion to choose between a
sentence that involves prison time and one that does not, the difference in
outcome is arguably more significant than the division between different
sentence lengths. This is because of the stark difference between having
freedom from incarceration and the reality of incarceration.
Following the metaphor of a sliding scale, then, the second fault line
thus requires less procedure than the first. It is worth noting that this model
238
See Cabana v. Bullock, 474 U.S. 376, 386 (1986) (“[T]he decision whether a sentence is so
disproportionate as to violate the Eighth Amendment . . . has long been viewed as one that a trial judge
or an appellate court is fully competent to make.” (citing Solem v. Helm, 463 U.S. 277, 303 (1983);
Weems v. United States, 217 U.S. 349 (1910)).
239 See Spaziano v. Florida, 468 U.S. 447, 465 (1984); see also supra Part II.A.4.
240 See Alyson Dinsmore, Comment, Clemency in Capital Cases: The Need to Ensure Meaningful
Review, 49 UCLA L. REV. 1825, 1827-28 (2002).
241 See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 282-85 (1998) (plurality opinion)
(stating that “[t]here is . . . no substantive expectation of clemency”).
242 See Weinstein, supra note 168, at 94-95.
243 Id.
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defines the minimum procedures that the Constitution should require, and
courts and legislatures might deem other requirements helpful as well.
Of the five procedural rights highlighted above, only reliability and
accuracy seem constitutionally required. A close examination of each of the
rights in this context reveals why, despite the broad policy appeal of having
them all be a part of every sentencing hearing.
First, the unfettered ability to introduce mitigating evidence does not
seem essential in this context because less is at stake. Allowing a court to
restrict such evidence to that which it deems relevant to the sentencing
hearing does not compromise the proceeding in the same way that it would
interfere with a capital sentencing hearing.
Second, the procedural requirement of individualized sentencing determinations likewise seems less important when the question is one of incarceration instead of death. Individual differences typically matter less,
both in terms of the crime and the offender, as the mens rea plays less of a
role with less severe crimes. The individual background of the offender,
when relevant, likewise seems less consequential when addressing lowlevel crimes.
Third, with respect to mercy, while incarceration is a serious matter,
the absence of the opportunity to plead for mercy does not strike at the humanity and dignity of the offender in the same way that it might in a deathin-custody case. When the most stringent sentence available is an incarceration period of a year or less, the idea of mercy seems less powerful and
worthy of credence.
Nonetheless, reliability and accuracy remain important procedural
rights, even in cases where the decision is a custody/non-custody one. As to
reliability, the judge sentencing the offender must do so based on appropriate and proper considerations, as well as a correct understanding of such
requirements.244 Failure to abide by basic fairness protections compromises
the sentencing process and, as a result, courts must remedy such errors.
As to accuracy, the procedural right requires some connection between
the goals of punishment and the sentence the court imposes. An arbitrary
sentence, even if the consequence is only a few months in prison, is still
improper. There must be some link between the goals of punishment and
the sentence imposed.
3.
Intermediate Points Along the Scale
In between the two fault lines, the question becomes whether the three
procedural requirements of mitigating evidence, individualized consideration, and mercy should apply. Under its death-is-different approach, the
244
See supra Part II.A.4.
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Supreme Court has not required any of these protections in non-capital cases, with the exception of mandatory juvenile LWOP cases.245
That does not mean, however, that the court should not extend the
scope of these protections in this context. As a rule of thumb, the closer the
potential deprivation moves toward a death-in-custody sentence, the stronger the case for constitutionally requiring these three procedural protections
in some form.
With mitigation, for instance, the harsher the possible sentence, the
more relevant mitigating evidence becomes. This is because the weight of
such evidence is stronger given the extent of the possible deprivation; it is
more likely to matter.
With individualized considerations, the court similarly has a greater
need to understand the individual characteristics of the offender and the
details of the offense where the deprivation is particularly serious. Understanding the individual’s circumstances in such a situation may help to differentiate between offenders that face harsh sentences.
In this middle area between the two fault lines, then, the court should
develop a common law of sentencing procedure, articulating when and how
the different procedures ought to apply in such cases.
C.
Additional Consequences of Procedural Proportionality
Practically, this model has import in several different ways. First, the
amount of mitigation available to the defendant ought to increase in cases
where the defendant faces a serious sentence. While capital cases place no
restriction on a defendant’s use of mitigation, offenders in non-capital cases
enjoy no constitutional protection as to their ability to offer mitigating evidence.246 Mandatory sentences in particular create a constitutional problem
when they mandate a lengthy sentence.247
It is one thing to lump similarly situated offenders into the same category for minor infractions. Having automatic fines for speeding violations,
for example, should not require any sentencing procedure, as the efficiency
gains far outweigh the value of a hearing that considers the individualized
circumstances of a particular infraction.
On the other end of the spectrum, though, a third-time drug offender
ought to have the opportunity to present mitigating evidence when facing a
lengthy drug sentence. To deny such an opportunity is dehumanizing, and
245
See Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012).
See King, supra note 8, at 197 (noting that Virginia has no statute requiring the introduction of
mitigating evidence in non-capital cases); but see Lockett v. Ohio, 438 U.S. 586, 603-04 (1978) (plurality opinion) (holding that restricting the introduction of mitigating evidence in capital cases is unconstitutional).
247 See Woodson v. North Carolina, 428 U.S. 280, 301-05 (1976) (plurality opinion).
246
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rests on an assumption that all such offenders are, in essence, the same for
sentencing purposes. By allowing mitigation in all such cases, courts could
improve sentencing accuracy by being able to tailor their sentences more
closely to the offenders, both in retributive and utilitarian terms.
A second advantage tied directly to the increased ability to introduce
mitigating evidence would be a requirement of individualized sentencing
determinations proportional to the seriousness of the available sentence.
Again, when the consequence of the sentence is comparatively insignificant, requiring consideration of the individual characteristics of the offender
and the crime seems less important, as the offenses seem easier to aggregate. The differences between one shoplifting case and another with reference to the offender’s personal characteristics or the crime itself seem to
have less consequence as a basis for distinguishing one sentence from another. Were a court to engage in a full-blown investigation into the individualized circumstances of two shoplifters, the difference in sentencing outcome likely would be small.
The difference between a life with parole sentence and a LWOP sentence, on the other hand, is much more significant. With more serious sentences such as these, it makes sense to require courts to probe deeper to
assess whether a particular offender warrants such a sentence, as the deprivation of liberty is much greater.
For the procedural right of accuracy, a possible requirement in a
scheme of procedural proportionality would be to require a court to make
certain specific findings precedent to eligibility for a particular sentence.
Again, the death penalty provides an example of how this might work. In
such cases, proof of the presence of aggravating circumstances is precedent
to death eligibility, and a death sentence often rests on a finding that the
aggravating circumstances outweigh mitigating circumstances.248
In LWOP cases, for instance, a procedural requirement that the
sentencer find the offender to be deserving of death in prison and/or to be
irredeemable as a person prior to imposing such a sentence could help ensure that such sentences are intentional and not arbitrary. States could require a similar determination in other death-in-custody cases, such as those
involving a term of years approaching the life expectancy of the offender.
Finally, the adoption of a procedural proportionality approach would
ensure that all offenders receive their day in court with respect to sentencing. In particular, those facing death-in-custody sentences would have the
opportunity to offer mitigating evidence, receive individualized consideration, and plead for mercy.249
248
249
See Gregg v. Georgia, 428 U.S. 153, 193-95 (1976) (plurality opinion).
See generally Part II.
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CONCLUSION
In many ways, the Supreme Court’s decision in McGautha v. California, in which it held that Fourteenth Amendment procedural due process
does not apply to capital sentencing, was a mistake. While the Court remedied it a year later by situating the same legal principles—procedural rights
at sentencing—under the Eighth Amendment, the adoption of this idea was
incomplete in two ways.
First, it did not allow for the possibility that such rights might exist
outside of the context of capital cases. Instead, for decades, it relied on the
principle of death-is-different to develop a robust set of procedural protections at sentencing that apply only to capital cases.
Second, it did not consider the scope of these ideas and the degree to
which a sliding scale (as on the Fourteenth Amendment side) might serve
criminal offenders well, in guaranteeing robust procedural rights at sentencing.
This Article has attempted to remedy both deficiencies. It has first argued for relaxing the death-is-different approach, replacing it with a sliding
scale of procedural rights that reflect the differences among sentences, but
accord greater weight to death-in-custody sentences. In addition, it has
mapped out certain procedural rights at sentencing and suggested a possible
application of such procedural protections.
At the very least, this Article has offered the novel contribution of using capital procedures as a means by which to improve the quality of sentencing hearings for offenders through the expansion of constitutional procedural protections. Failure to abide by the proposals introduced herein will
silence far too many death-in-custody offenders, without even giving them
the chance to plead, as Fortunato did, “For the love of God!” in an attempt
to save their lives.250
250
POE, supra note 1, at 235.