NCJ Number
125883
Journal
Columbia Journal of Law and Social Problems Volume: 21 Issue: 4 Dated: (1988) Pages: 385-415
Date Published
1988
Length
31 pages
Annotation
This article argues that the eighth amendment creates a substantive right to proportionate penalties and that the fourteenth amendment requires a proportionality review of death sentences to protect that eighth amendment substantive right.
Abstract
In Pulley v. Harris (1984), the U.S. Supreme Court held that the eighth amendment does not require a State appellate court to compare the sentence in the case before it with penalties imposed in similar cases throughout the State before it affirms a death sentence. In Ford v. Wainwright (1986), the Court held that the eighth amendment granted incompetent persons a substantive right in avoiding execution for the duration of their incompetency. This substantive right entitled the defendant to procedural due process protections on the issue of whether he was insane. This note argues that in view of the Court's due-process analysis in "Ford," the issue of whether a proportionality review of all death sentences is constitutionally required should be reconsidered. In addition to arguing that the due process clause requires a proportionality review in capital cases, the article shows that State laws requiring a proportionality review create an entitlement protected by the fourteenth amendment. 170 footnotes