Washington Law Review

Article

The Eighth Amendment Power to Discriminate

June 01, 2020 | 95 Wash. L. Rev. 809

Abstract: For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.1 After decades of attempting to eliminate the requirement, conservative justices have recently employed a new tactic: extinction through expansion. By relying on the individualized sentencing requirement to discourage jury instructions that enhance consideration of mitigation evidence, these justices have stretched the doctrine well beyond its intended meaning. This broad interpretation renders individualized sentencing ephemeral to the point of insignificance, ensuring that the problems with capital sentencing will continue in the years to come.

While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion. This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it. It proposes that states employ specific jury instructions that: (1) require jurors to consider certain types of evidence as legally mitigating; (2) address the historically racist application of the death penalty; and (3)permit unfettered discretion solely in the direction of leniency. Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.

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