STEVENS, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

465 U.S. 37

Pulley v. Harris

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 82-1095 Argued: November 7, 1983 --- Decided: January 23, 1984

JUSTICE STEVENS, concurring in part and concurring in the judgment.

While I agree with the basic conclusion of Part III of the Court's opinion -- our case law does not establish a constitutional requirement that comparative proportionality review be conducted by an appellate court in every case in which the death penalty is imposed -- my understanding of our decisions in Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); and Zant v. Stephens, 462 U.S. 862 (1983), is sufficiently different from that reflected in Part III to prevent me from joining that portion of the opinion.

While the cases relied upon by respondent do not establish that comparative proportionality review is a constitutionally required element of a capital sentencing system, I believe the case law does establish that appellate review plays an essential role in eliminating the systemic arbitrariness and capriciousness which infected death penalty schemes invalidated by Furman v. Georgia, 408 U.S. 238 (1972), and hence that some form of meaningful appellate review is constitutionally required. [p55]

The systemic arbitrariness and capriciousness in the imposition of capital punishment under statutory schemes invalidated by Furman resulted from two basic defects in those schemes. First, the systems were permitting the imposition of capital punishment in broad classes of offenses for which the penalty would always constitute cruel and unusual punishment. Second, even among those types of homicides for which the death penalty could be constitutionally imposed as punishment, the schemes vested essentially unfettered discretion in juries and trial judges to impose the death sentence. Given these defects, arbitrariness and capriciousness in the imposition of the punishment were inevitable, and, given the extreme nature of the punishment, constitutionally intolerable. The statutes we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of these defects. Each scheme provided an effective mechanism for categorically narrowing the class of offenses for which the death penalty could be imposed, and provided special procedural safeguards including appellate review of the sentencing authority's decision to impose the death penalty.

In Gregg, the opinion of Justices Stewart, POWELL, and STEVENS indicated that some form of meaningful appellate review is required, see 428 U.S. at 198, and that opinion, id. at 204-206, as well as JUSTICE WHITE's opinion, see id. at 224, focused on the proportionality review component of the Georgia statute because it was a prominent, innovative, and noteworthy feature that had been specifically designed to combat effectively the systemic problems in capital sentencing which had invalidated the prior Georgia capital sentencing scheme. But observations that this innovation is an effective safeguard do not mean that it is the only method of ensuring that death sentences are not imposed capriciously, or that it is the only acceptable form of appellate review.

In Proffitt, the joint opinion of Justices Stewart, POWELL, and STEVENS explicitly recognized that the Florida "law differs from that of Georgia in that it does not require the court to conduct any specific form of review." 428 U.S. at [p56] 250-251. The opinion observed, however, that "meaningful appellate review" was made possible by the requirement that the trial judge justify the imposition of a death sentence with written findings, and further observed that the Supreme Court of Florida had indicated that death sentences would be reviewed to ensure that they are consistent with the sentences imposed in similar cases. Id. at 251. Under the Florida practice as described in the Proffitt opinion, the appellate review routinely involved an independent analysis of the aggravating and mitigating circumstances in the particular case. Id. at 253. Later in the opinion, in response to Proffitt's argument that the Florida appellate review process was "subjective and unpredictable," id. at 258, we noted that the State Supreme Court had "several times" compared the circumstances of a case under review with those of previous cases in which the death sentence had been imposed and that by "following this procedure the Florida court has in effect adopted the type of proportionality review mandated by the Georgia statute." Id. at 259. We did not, however, indicate that the particular procedure that had been followed "several times" was either the invariable routine in Florida, ^[*] or that it was an indispensable feature of meaningful appellate review. [p57]

The Texas statute reviewed in Jurek, like the Florida statute reviewed in Proffitt, did not provide for comparative review. We nevertheless concluded "that Texas' capital [p58] sentencing procedures, like those of Georgia and Florida," were constitutional because they assured that "sentences of death will not be ‘wantonly' or ‘freakishly' imposed." 428 U.S. at 276. That assurance rested in part on the statutory guarantee of meaningful appellate review. As we stated:

By providing prompt judicial review of the jury's decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.

Ibid. Thus, in all three cases decided on the same day, we relied in part on the guarantee of meaningful appellate review, and we found no reason to differentiate among the three statutes in appraising the quality of the review that was mandated.

Last Term, in Zant v. Stephens, 462 U.S. 862 (1983), we again reviewed the Georgia sentencing scheme. The Court observed that the appellate review of every death penalty proceeding "to determine whether the sentence was arbitrary or disproportionate" was one of the two primary features upon which the Gregg joint opinion's approval of the Georgia scheme rested. 462 U.S. at 876. While the Court did not focus on the comparative review element of the scheme in reaffirming the constitutionality of the Georgia statute, appellate review of the sentencing decision was deemed essential to upholding its constitutionality. Id. at 876-877, and n. 15. The fact that the Georgia Supreme Court had reviewed the sentence in question "to determine whether it was arbitrary, excessive, or disproportionate" [p59] was relied upon to reject a contention that the statute was invalid as applied because of the absence of standards to guide the jury in weighing the significance of aggravating circumstances, id. at 879-880 (footnote describing proportionality review omitted), and the mandatory appellate review was also relied upon in rejecting the argument that the subsequent invalidation of one of the aggravating circumstances found by the jury required setting aside the death sentence, id. at 890. Once again, proportionality review was viewed as an effective, additional safeguard against arbitrary and capricious death sentences. While we did not hold that comparative proportionality review is a mandated component of a constitutionally acceptable capital sentencing system, our decision certainly recognized what was plain from Gregg, Proffitt, and Jurek: that some form of meaningful appellate review is an essential safeguard against the arbitrary and capricious imposition of death sentences by individual juries and judges.

To summarize, in each of the statutory schemes approved in our prior cases, as in the scheme we review today, meaningful appellate review is an indispensable component of the Court's determination that the State's capital sentencing procedure is valid. Like the Court, however, I am not persuaded that the particular form of review prescribed by statute in Georgia -- comparative proportionality review -- is the only method by which an appellate court can avoid the danger that the imposition of the death sentence in a particular case, or a particular class of cases, will be so extraordinary as to violate the Eighth Amendment.

Accordingly, I join in all but Part III of the Court's opinion, and concur in the judgment.

* And, of course, it was not the regular practice in Florida before Proffitt was decided. Proportionality review was not conducted in the following pre-Proffitt decisions: Jones v. State, 332 So.2d 615, 619 (1976) (per curiam) (reversing death sentence as unwarranted under circumstances of particular case); Henry v. State, 328 So.2d 430, 432 (per curiam) (affirming death sentence weighing circumstances in case before it), cert. denied, 429 U.S. 951 (1976); Douglas v. State, 328 So.2d 18, 21-22 (same), cert. denied, 429 U.S. 871 (1976); Thompson v. State, 328 So.2d 1, 5 (1976) (quotes language from State v. Dixon, 283 So.2d 1 (Fla.1973), concerning review in light of prior decisions, then reverses death sentence without considering other cases, but instead based on facts in case before it); 328 So.2d at 5-6 (Adkins, J., concurring specially) (maintaining affirmance was merited based on his agreement with weighing of circumstances performed by trial judge); Dobbert v. State, 328 So.2d 433, 441 (1976) (affirming death sentence without cross-case proportionality review, but opinion did agree with trial judge's general remark that the crime was the most atrocious of which he had personal knowledge), aff'd, 432 U.S. 282 (1977); Halliwell v. State, 323 So.2d 557, 561 (1975) (per curiam) (reversing death sentence based on weighing of circumstances in particular case); Tedder v. State, 322 So.2d 908, 910 (1975) (establishing special standard of review in reviewing imposition of death sentence after jury recommendation of life sentence, and reversing death sentence under circumstances of particular case); Swan v. State, 322 So.2d 485, 489 (1975) (same); Gardner v. State, 313 So.2d 675, 677 (1975) (affirming death sentence based on weighing circumstances in case before it), cert. denied, 430 U.S. 349 (1977); Spinkellink v. State, 313 So.2d 666, 671 (1975) (same), cert. denied, 428 U.S. 911 (1976); Sawyer v. State, 313 So.2d 680, 682 (1975) (same), cert. denied, 428 U.S. 911 (1976); Hallman v. State, 305 So.2d 180, 182 (1974) (per curiam) (same), cert. denied, 428 U.S. 911 (1976); Sullivan v. State, 303 So.2d 632, 637-638 (1974) (specially concurring opinion joined by five justices citing Dixon for proposition that court's responsibility is to independently determine whether death penalty warranted and proceeds to affirm the death sentence based on assessment of circumstances in case before it), cert. denied, 428 U.S. 911 (1976); Taylor v. State, 294 So.2d 648, 652 (1974) (reversing death sentence based on weighing of circumstances in particular case). Moreover, opinions issued shortly before and after Proffitt reveal a similar absence of comparative proportionality review. Adams v. State, 341 So.2d 765, 769 (1976) (affirming death sentence and citing Dixon for proposition that role of court is to independently review circumstances in particular case and determine whether death sentence warranted), cert. denied, 434 U.S. 977 (1977); Funchess v. State, 341 So.2d 762, 763 (1976) (affirming death sentence weighing circumstances in case before it), cert. denied, 434 U.S. 878 (1977); Chambers v. State, 339 So.2d 204 (1976) (per curiam) (reversing death sentence based on circumstances of case before it); Meeks v. State, 339 So.2d 186, 192 (1976) (per curiam) (affirming death sentence, compares sentence with that of accomplice only, affirms on ground that sentence warranted under circumstances of particular case), cert. denied, 439 U.S. 991 (1978); Knight v. State, 338 So.2d. 201, 205 (1976) (affirming death sentence weighing circumstances in case before it); Meeks v. State, 336 So.2d 1142, 1145 (1976) (same); see also Cooper v. State, 336 So.2d 1133, 1142 (1976), cert. denied, 431 U.S. 925 (1977).

The Florida Supreme Court now undertakes to provide proportionality review in every case, see Brown v. Wainwright, 392 So.2d 1327, 1331, cert. denied, 454 U.S. 1000 (1981). As we noted in Proffitt, this practice does provide the "function of death sentence review with a maximum of rationality and consistency." 428 U.S. at 258-259. The fact that the practice is an especially good one, however, does not mean that it is an indispensable element of meaningful appellate review.