Promulgating Proportionality

Two lines of cases have dominated the Supreme Court'sEighth Amendment death penalty jurisprudence: theFurman-Gregg line of cases emphasizes the need to adoptrules to eliminate the arbitrariness inherent in unguidedcapital sentencing by juries, while the Woodson-Lockettline of cases emphasizes the opposite concern-the need forjuries to make individualized sentencing determinations-highlighting the inadequacy of rules.At first glance, these competing aims create someinternal tension, if not outright conflict. In hisconcurrence in Walton v. Arizona, Justice Scalia arguedthat this conflict was - irreconcilable: "[t]he latterrequirement [of individualized factual determinations]quite obviously destroys whatever rationality andpredictability the former requirement [of limitations onjury discretion] was designed to achieve. . . ." And theCourt has done little to reconcile this conflict. Indeed,recently in Kennedy v. Louisiana, Justice Kennedy stated,"this case law ... is still in search of a unifying principle."This Article attempts to provide just that-a unifyingprinciple-through the concept of 'proportionality." Asherein construed, proportionality requires that theapplicable punishment be commensurate with the crime inboth a relative and absolute sense. Using this principle,the Article develops a framework by which to apply theCourt's Eighth Amendment jurisprudence, incorporatingboth lines of cases in a way that alleviates the inherenttension of pursing the competing goals of generalconsistency and case-specific consideration.This Article, then, argues that the Supreme Court oughtto apply the Eighth Amendment in capital cases solely interms of two distinct types of proportionality-absoluteand relative.

Specifically, the model requires that thestate court (and jury) determine the issue of absoluteproportionality first, narrowing the individuals eligible forthe death penalty using case-specific mitigating facts. The state courts (typically through appellate review) must then determine the issue of relative proportionality, furthernarrowing the cases in which the offender is eligible toreceive capital punishment.Part I of the Article describes the 'Walton problem"-theapparent tension between the Furman-Gregg arbitrarinessprinciple and the Woodson-Lockett individualizeddetermination principle. In Part II, the Article defines theconcept of proportionality,describing both its absolute andrelative forms. In Part III, the Article articulates a newmodel for implementing the Eighth Amendment thatsolves the Walton problem.

Finally, in Part IV, the Articledemonstrates how proportionality can serve as theunifying principle for the Court's capital jurisprudence.