TWO PERSPECTIVES ON STRUCTURING DISCRETION - JUSTICES STEWART AND WHITE ON THE DEATH PENALTY

• NCJ Number: 58765
• Journal: Journal of Criminal Law and Criminology Volume: 70 Issue: 2 Dated: (SUMMER 1979) Pages: 194-213
• Author(s): L I PALMER
• Date Published: 1979
• Length: 20 pages
• Sponsoring Agency: Ford Foundation
• Corporate Author: Northwestern University; Williams and Wilkins Co
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

DIFFERENT APPROACHES TAKEN BY TWO U.S. SUPREME COURT JUSTICES TO ANLAYZING THE CONSTITUTIONALITY OF DEATH PENALTY STATUTES ARE DISCUSSED.

Abstract

JUSTICE STEWART AND JUSTICE WHITE AGREE THAT STATUTES PROVIDING FOR IMPOSITION OF THE DEATH PENALTY IN ACCORDANCE WITH CERTAIN STANDARDS ARE CONSTITUTIONAL. BUT FUNDAMENTAL THEORETICAL DIFFERENCES HAVE LED EACH JUSTICE TO FRAME DEATH PENALTY ISSUES DIFFERENTLY, WITH THE RESULT THAT JUSTICE STEWART FOUND TWO SLIGHTLY DIFFERENT MANDATORY DEATH PENALTY STATUTES TO BE UNCONSTITUTIONAL, WHILE JUSTICE WHITE FOUND THE SAME STATUTES TO BE CONSTITUTIONAL. JUSTICE STEWART' 'PUNISHMENT' THEORY RELIES ON PROCEDURAL DEVICES TO INDIVIDUALIZE THE DECISION OF IMOSING THE DEATH PENALTY. HE BELIEVES THAT THE ONLY SOLUTION TO THE PROBLEM OF CONFLICTING GOALS IN DRAFTING DEATH PENALTY LEGISLATION (RETRIBUTION, DETERRENCE, REHABILITATION, REFORM) IS TO ADOPT PROCEDURES THAT LEAVE TO THE APPELLATE COURTS THE RESONSIBILITY OF WEIGHING THESE CONFLICTING GOALS IN INDIVIDUAL CASES. JUSTICE STEWART'S ANALYSIS IS BASED ON HIS INTERPRETATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT AND ON THE CRUEL AND UNUSUAL PUNISHMENT CLAUSE. BY CONTRAST, JUSTICE WHITE'S ANALYSIS FOCUSES ENTIRELY ON THE EIGHTH AMENDMENT. JUSTICE WHITE IS CONCERNED PRIMARILY WITH THE NEED FOR CLEARLY ARTICULATED STANDARDS OF CULPABILITY. FOR HIM, GENERAL DETERRENCE IS A SUFFICIENT GOAL FOR DEATH PENALTY STATUTES, AND THE ISSUE IS WHETHER THE STATE HAS IDENTIFIED WHO DESERVES TO DIE WITH SUFFICIENT PARTICULARITY TO FURTHER THIS GOAL. UNDER JUSTICE WHITE'S THEORY, THERE IS LITTLE NEED FOR SPECIAL PROCEDURAL DEVICES. BOTH THEORIES ARE CONCERNED WITH SEEING THAT ONLY THOSE WHO DESERVE TO DIE ARE SENTENCED TO DEATH. BUT DIFFERENCES IN THEIR CONSTITUTIONAL REFERENTS LEAD TO CONTRADICTORY RESULTS. THE TWO THEORIES, WHICH REPRESENT DIFFERING NORMATIVE PERSPECTIVES ON HOW THE COMPONENT PARTS OF THE CRIMINAL PROCESS OUGHT TO OPERATE AS A SYSTEM, HAVE IMPLICATION FOR FUTURE DEATH PENALTY LITIGATION AND OTHER SENTENCING ISSUES. (AUTHOR ABSTRACT MODIFIED--LKM)