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Politicizing who dies.

The modern system of capital punishment and fragments the power to decide who dies.(1) Because the system is composed of multiple actors, no single actor bears the burden of undivided power and responsibility. This division of moral labor tempts actors at the front of the system, such as prosecutors and juries, to convince themselves that later actors will correct any error in judgment they might happen to make. Yet later actors, such as state and federal appellate courts, are in turn disinclined to upset decisions already made and legitimized by a sequence of earlier actors.(2) Where power is divided, responsibility shuffles to and fro in a fatal kind of perpetual motion, never really settling anywhere. In the end, "nobody actually seems to do the killing."(3)

So long as the system's basic architecture remains unaltered, the power to decide who dies will inescapably be dispersed. This Note therefore focuses on the relative distribution of power within the system. It traces how the Supreme Court's decisions in several recent capital cases have channelled power from politically insulated actor to decisionmakers who are politically accountable, who are more apt to respond to political-electoral, not moral, imperatives. Part I details how the Court's modifications in its "evolving standards of decency" doctrine and its new law of retroactivity have diverted to political actors more power to develop the constitutional norms governing the application of the death penalty. Once those norms have been specified, it still remains to be decided who, within the constraints those norms impose, will be chosen to die. Part II maps how the Court's ratification of "quasi-mandatory" statutes and its gradual creation of an "appellate jury" have allocated greater influence to politics to make this decision as well. Finally, Part III explores the constitutional and moral price paid when the power over both norm selection and death selection is assigned to politics.

I. Allocating Norm-Selection Power to Politics

The Eighth Amendment imposes substantive limitations on whom the states may execute(5) and procedural limitations on how they may select whom to execute.(6) The content of these limitations, however, has come to depend increasingly not on the judgment of the federal courts, but on the verdict of more politically responsive actors.

A. "Evolving Standards of Decency"

The role of the courts in capital sentencing is not to pass judgment on the moral appropriateness of the sentence in any particular case. Rather, it is to articulate the federal constitutional norms regulating the death penalty's administration. Among the most important of these norms are those which place limits on whom the state may render eligible for the death penalty. In the past, the Supreme Court itself has assumed a fair share of the authority to articulate these norms. Recently, however, the Court has displayed a noticeable readiness to delegate to the states the power to determine whom the Eighth Amendment immunizes from the death penalty. The vehicle or this trend has been a subtle though significant, modification in the "evolving standards of decency" doctrine,(7) a doctrine the Court has developed to give meaning to the Eighth Amendment's declaration that cruel and unusual punishments shall not be inflicted.

1. Two Approaches to the Constitutional Meaning of Cruel and Unusual Punishments

The meaning of the Eighth Amendment's prohibition on cruel and unusual punishments can be extracted using two different approaches. First, it may be interpreted normatively: whether or not the Eighth Amendment prevents the imposition of certain kinds of punishments or prevents the punishment of certain kinds of offenses or offenders must be resolved through moral argument.(8) Following this approach, the demands of the Eighth Amendment depend upon critical morality, and the federal courts assume the burden of deciding what critical morality requires. Alternatively, the Amendment may be interpreted: the content of the ban on cruel and unusual punishments somehow depends on conventional morality, requiring that the federal courts exercise no independent moral judgment, but instead merely specify the criteria by which the requirements of conventional morality are to be ascertained.(9)

2. A Victory for Positivism

When the Court first turned its attention toward the Eighth Amendment's bearing on the death penalty, some observers believed that the Cruel and Unusual Punishments Clause would be interpreted normatively,(10) an certain voices in the Court's fractured decision in Furman v. Georgia(11) heightened expectations that this view might eventually prevail.(12) In two recent cases, however, it appears that a solid plurality of the Court has opted instead to pursue a more positivistic approach.(13) In stanford v. Kentucky, (14) the Court concluded that society's evolving standards of decency had not matured to the point where they would foreclose the execution of sixteen-year-olds.(15) Neither, the Court concluded in Penry v. Lynaugh,(16) had they reached the stage where they eclipsed the execution of the retarded.(17)

Both cases reveal a discernible effort by a plurality of the Court no only to fix the content of the Eighth Amendment by employing objective criteria but, even more importantly, to reduce the range of permissible criteria to one Specifically, a plurality of the Court has resolved that the contours of the Eighth Amendment's ban on cruel and unusual punishment--leavened perhaps with some reference to the behavior of capital sentencing juries--are to be defined exclusively by the enactments of state legislatures.(18) According to Justice Scalia, any indicator of national consensus other than legislative enactments

provides too uncertain a foundation upon which to ask the Court to rest constitutional law. Underlying this skepticism is the fear that the considered judgment of the Court would be no more than the sum of its members' naked preferences.(19) Any consensus firm enough to warrant the Court's attention must be manifest in state law. For the present, then, Stanford and Penry mean the decisions of state legislators, embodied in state statutes, will be treated as first among equals, as occupying privileged position against other indicia.(20) And should the current plurality crystallize into a majority, legislative enactments most probably will become dispositive. By whatever mechanism our standards of decency evolve, they will evolve independently of enlightenment from the Court.

Labelling the plurality's approach "revisionist,"(21) Justice Brennan pushed in the opposite direction, trying to expand the range of relevant considerations to include the "views of organizations with expertise in the relevant fields and the choices of governments elsewhether in the world."(22) In addition, he insisted that the plurality's positive needed a normative supplement. Derived from precedent, this supplement would oblige the Court to outlaw any punishment that was disproportionate to the defendant's moral blameworthiness or that served no legitimate penal goal.(23) The plurality's alternative view, justice Brennan predicted, would be the Eighth Amendment's requiem. Like any provision of the Bill of Rights, the Eighth Amendment functions by imposing limits on popular will. The methodology adopted in Standford and Penry, however, threatens to frustrate this function. For under the Standford-Penry approach, the Court has elected to "return the task of defining the contoursoof the Eighth Amendment protection to political majorities."(24) Yet when a constitutional right receives its content from state law, it deteriorates into "little more than good advice."(25)

B. Retroactivity after Teague

With its decisions in Stanford and Perry, the Court has quietly ceded to state legislatures much of the power to fix the constitutional norms circumscribing the death penalty's substantive reach. In a parallel development, the Court has, through recent innovations in the law of retroactivity, placed much of the power to mold the federal norms governing the structure of the death-selection process in the hands of state appellate courts. Ordinarily subject to popular selection and retention elections, these courts are more open to political forces than their federal counterparts.

1. A New Vision of the Great Writ

In the past, death-sentenced prisoners frequently received relief in federal court on habeas corpus after having exhausted state remedies.(26) Moreover, such relief was often based on Supreme Court decisions announced only after the defendant has completed his direct appeal and his conviction has therefore become final. In Teague v. Lane,(27) a 1987 noncapital case, the Supreme Court dramatically altered the existing habeas regime. Prior to Teague, the Court would announce new rules of criminal procedure in one case and then decide whether or not those rules should be given retroactive effect in either the same case or a later case.(28) In Teague, the Court categorically held, with two narrow exceptions, that new rules of criminal procedure would not be applied retroactively on collateral appeal to any defendant whose conviction had become final before the new rule was announced.(29)

Explicity extended to capital petitioners in Penry v. Lynaugh,(30) Teague's nonretroactivity doctrine ordained a new understanding on the Court of the function of the Great Writ. During the Warren Court era, habeas became a vehicle for those held under state authority to challenge the constitutionality of their convictions and sentences.(31) This Warren Court vision began to change with the emergence of the Burger Court. No longer a tool to be used by inmates to contest the constitutionality of their confinement, habeas corpus has become instead a device to ensure that state courts comply with federal law at the time they review a defendant's sentence on direct appeal. Like the exclusionary rule, habeas relief has become a sanction to deter lawless state conduct. And, since state courts cannot be expected to comply with law that did not exist at the time they reviewed a prisoner's conviction and sentence, applying new law retroactively cannot fulfill the habeas remedy's avowed purpose.

Though this conception of the Great Writ expresses a coherent vision, it will entail dire consequences for capital petitioners. In the pre-Teague world, a capital defendant whose conviction had become final before the Court announced a new rule could often still invoke the new rule in order to obtain relief. In the post-Teague world, however, the rule will be unavailable, and unless the rule sought falls within one of the two exceptions to Teague's general bar a petitioner who can find no basis for relief in "old" law will be executed.(33)

2. Expanding the Definition of a "New Rule"

In three cases decided during the 1989 Term, the Court began to unveil more fully the formidable obstacle Teague presents to capital petitioners. In Butler v. McKellar(34) and Saffle v. Parks,(35) the Court elaborated on what constitutes a "new rule" for purposes of retroactivity. According to the Butler majority, a rule is a new rule if it is "susceptible to debate among reasonable minds."(36) Any rule based upon a "reasonable, good-faith interpretation of existing precedent made by state courts"(37) will be judged new. Moreover, what constitutes a "reasonable" interpretation has received a positivistic gloss, much like the latest gloss on the "evolving standards of decency" doctrine.(38) Under Teague and its progeny, simply surveying the decisions of the state courts may establish a rule's status. Whenever a difference of opinion materializes among state tribunals, the rule is arguably "susceptible to debate among reasonable minds." It therefore qualifies as "new" and is placed beyond the reach of capital petitioners seeking habeas relief in federal court.(39) At the extreme, then, a single wayward state court, by reaching a conclusion opposite that reached by every other state, could place a rule off limits to capital petitioners on collateral review.(40)

3. Contracting the Exceptions

While expanding the definition of a "new rule," the Court has at the same time begun to shrink the two exceptions to Teague. Under the first exception, even "new" rules "that place an entire category of primary conduct beyond the reach of the criminal law or . . . that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense"(141) will be applied retroactively. Indirectly, however, the scope of this exception will likely be defined not by the Court, but by the states. State legislatures will enjoy this power because, as previously explained,(42) the Eighth Amendment's substantive limitations, based on the "evolving standards of decency" doctrine, now derive almost completely from state law. In this way, the first exception becomes a product, albeit an indirect product, of state legislative action. Thus, just as state court judges will (indirectly) define when a rule is new, so state legislatures will (indirectly) determine the availability of Teague's first exception. Moreover, because state legislatures are nowadays more inclined to expand than to contract the death penalty's reach, the first exception is unlikely to provide any significant relief from Teague.(43)

Like the first, the second exception appears unlikely to provide much respite from Teague's retroactively bar. This exception is regulated by principles appropriated from Justice Harlan's dissenting opinions in Desist v. United States(44) and Mackey v. United States.(45) In Desist, Justice Harlan argued that a new rule should be applied retroactively whenever it would "significantly improve . . . pre-existing fact-finding procedures."(46) In Mackey, Harlan amended and limited his test, urging that a new rule be applied retroactively only where it required the observance of those procedures that are "implicit in the concept of ordered liberty.'"(47) According to Harlan, only those rules that "alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction"(48) should receive retroactive treatment. In Teague, the Court combined Desist's accuracy element with Mackey's "bedrock" requirement to create a two-prong test to govern the second exception.

In Sawyer v. Smith,(49) the Court interpreted this two-prong test in a way that virtually closed the last avenue open against Teague's retroactivity bar. Sawyer, whose conviction had become final on April 2, 1984, petitioned for a writ of habeas corpus, claiming that when the prosecutor "argued to the jury that a sentence of death would be |merely a recommendation' and that |others' would be able to correct the decision if it turned out to be |wrong,'"(50) he violated the rule announced in Caldwell v. Mississippi.(51) Because Caldwell was decided on June 11, 1985, some fourteen months after his conviction became final, Sawyer's claim triggered the Teague inquiry. After finding that Caldwell constituted a "new rule" and that the first exception was unavailable,(52) Justice Kennedy moved on to the next step in the Teague analsis, addressing the applicability of the second exception to Caldwell-type errors.

Emphasizing the first prong of the test, Sawyer submitted that the second exception should include any rule of capital sentencing designed to "|preserve the accuracy and fairness of capital sentencing judgments.'"(53) Such an interpretation, said Justice Kennedy, was unacceptable, for nearly every rule relating to the penalty phase of a capital trial was designed to enhance accuracy and fairness. Sawyer's construction would cause the exception to swallow the rule; in effect, it would make all new rules of capital sentencing retroactive.

Stressing instead the test's second prong, Justice Kennedy explained that the second exception applies only to "|watershed rules of criminal procedure' that are necessary to the fundamental fairness of the criminal proceeding."(54) Caldwell fell outside the second exception, Justice Kennedy insisted, because it did not involve an essential ingredient of fundamental fairness.(55) Under this analysis, Caldwell was merely a constitutional bonus granted to capital defendants, an additional but nonfundamental layer of protection beyond that already available under due process.(56) It remains obscure, however, precisely when a rule is so fundamental that it amounts to a "watershed." At present, the Court appears to rely on what one observer has dubbed the "Gideon litmus test"(57): a rule falls under the second exception only when it safeguards a right the Court finds as essential as that sought by Clarence Gideon.(58) It would be sanguine to suppose, then, that the second exception will be available very often.

As part of the arche law of habeas corpus, Teague's nonretroactivity doctrine may appear esoteric, even irrelevant. The doctrine will, however, have a profound impact on who possess the power to articulate the norms regulating the death penalty's application, because it moves power from electorally immune federal court judges to electorally vulnerable state court judges. Because lower federal courts do not have the authority to hear state criminal cases on direct appeal, they can review state criminal proceedings only through habeas corpus. Teague, however, "deprive[s] the lower federal courts of most of their opportunities to make |new law' in federal habeas cases."(59) Whenever a state-sentenced petitioner seeks a new rule on collateral review, the federal courts will decline to hear him. Consequently, the evolution of federal criminal procedure will depend almost exclusively on the dialogue between the state courts and the Supreme Court--on the few occasions the Court agrees to hear an appeal on direct review.(60) The conversation between the lower federal courts and the High Court will dwindle, and with the Supreme Court as the only federal interlocutor, the dialogue between the state courts and the federal courts will become one-sided. In short, Teague's net institutional effect will be to divest the lower federal courts of their power to articulate norms of constitutional criminal procedure, including the norms governing the death-selection process.(61) In the post-Teague era, with the federal courts thus displaced, the power to elaborate constitutional norms of criminal procedure will fall to state appellate tribunals--judicial bodies that are more exposed to the pressures of local politics than are the federal courts.(62)

II. Allocating Death-Selection Power to Politics

The flow of norm-selection power to politics has been accompanied by a parallel flow of power over death-selection to politics. Politics, therefore, will influence not only the norms governing the capital sentencing process, but also the selection of who, subject to those norms, will die.

A. "Quasi-Mandatory" Statutes

In general, a state legislature can exert its influence over who dies through the rules it enacts to structure and constrain the jury's deliberations during the penalty phase. The legislature can appropriate death-selection power to itself most directly by adopting legal rules that mandate death under certain circumstances.(63) Hitherto disapproving rules of this genre, the Court has now embraced a muted version of them, thereby handing to state legislatures a modest, but disturbing, share of the power to select who dies.

1. Rejecting Mandatory Statutes

In Furman v. Georgia,(64) decided in 1972, the Court invalidated capital sentencing systems vesting the sentencer with complete discretion to impose life or death. Discretionary systems, the Court believed, rendered the death penalty too unpredictable. Receiving a death sentence, said Justice Stewart, was as random as "being struck by lighting."(65) In response to Furman, several states enacted mandatory statutes, i.e., statute designed to trigger a death sentence automatically once a jury convicted a defendant of capital murder. Under this legal regime, any defendant falling within a statutorily defined description would be sentenced to death, no matter how extenuating the circumstances. By decreeing death whenever a defendant satisfies certain legislative standards, mandatory statutes direct the power to decide who dies away from the jury and toward the legislature.

Though conceived as a way to satisfy Furman's insistance on predictability and consistency in capital sentencing, mandatory were nonetheless invalidated when, four years after Furman, they came before the Court in Woodson v. North Carolina(66) and Roberts (Stanislaus) v. Louisiana.(67) The Court found these statutes constitutionally intolerable because, however narrowly drafted, they failed to treat the defendant as a unique human being. Any legal rule abstracts from particularity,(68) and a legal rule that automatically imposes death must more or less regard capital defendants as an "undifferentiated mass to be subjected to the blind infliction of the penalty of death."(69) While mandatory statutes might have made the administration of the death penalty more consistent and more predictable, they also denied "the fundamental respect for humanity underlying the Eight Amendment."(70)

2. Embracing "Quasi-Mandatory" Statutes

Recently, the Court has cast doubt on the vitality of Woodson and its progeny. In two cases decided last year, Blystone v. Pennsylvania(71) and Boyde v. California,(72) the Court approved schemes that again require the jury to impose death under ceratin statutorily defined circumstances. The petitioner in Blystone for example, challenged Pennsylvania's capital statue, charging that it unconstitutionally bound the jury to impose death once it found the existence of at least one aggravating circumstance and failed to find any mitigating circumstances to offset it.(73) Similarly, the petitioner in Boyde objected that the jurors in his case returned a death sentence after being instructed that they "shall impose" death if aggravators outweighed mitigators.(74) These arrangements, the petitioners argued, were unconstitutional because they were "quasi-mandatory" and forced the jurors to impose death, albeit under relatively narrow circumstances.

Chief Justice Rehnquist, speaking for the majority, was unimpressed. There was nothing constitutionally offensive in either arrangement, he reasoned, because both statutes still required the jury to consider and give effect to whatever mitigating evidence the defendant chose to present.(75) For the Chief Justice, Woodson's demand that the defendant be treated as a unique individual was a narrow imperative. It required only that the state erect no bar to the defendant's right to introduce mitigating evidence.(76) Where mitigating evidence was not presented or was insufficient to offset the aggravators, the state was free to compel the jury to honor the outcome of its calculus. Under these circumstances, the law itself would make the juror's choice for them.

For the dissenters, to be treated as an individual, as Woodson required, meant more than the bare right to introduce mitigating evidence.(77) For even though quasi-mandatory statutes left the defendant's ability to present mitigating evidence unimpeded, they nonetheless forced the jury's hand where the murder was agrravated and where, for whatever reason, the defendant submitted no mitigating evidence. Yet under these limited circumstances, the jury might still believe that death was unwarranted in a particular case, either because it thought the aggravators alone were insufficiently weighty(78) or, perhaps, because it was moved to mercy. Moreover, a quasi-mandatory legislative rule of decision will produce a pattern of death sentences that is objectionable in a comparative sense.(79) For example, where no mitigating evidence is proffered, the Pennsylvania statute requires that the jury impose death upon a defendant who raped and tortured his victim as well as upon one who killed during the course of a thirteen dollar robbery, since both murders were committed in "the perpetration of a felony."(80) Premised on the assumption that all aggravators describe equally morally repugnant conduct, quasi-mandatory statutes bleach out any morally relevant difference between these two defendants.

Quasi-mandatory statutes represent a weaker version of their unqualified, pre-Woodson predecessors. Nonetheless, their object is still to shift death-selection power, however marginally, from the jury to the legislature. They "substitute[] a legislative judgment about the severity of a crime for a jury's determination that the death penalty is appropriate for the individual."(81) In states that enact quasi-mandatory statutes, capital defendants will begin to lose their particularity in the eyes of the law, shading into the "faceless, undifferentiated mass"(82) described so disparagingly in Woodson.

B. An "Appellate Jury"

Just as the Court has allocated power over the death-selection decision to state legislatures, it has concomitantly delegated death-selection power to state appellate courts. In a series of decisions culminating in Clemons v. Mississippi,(83) the Court has, as a matter of constitutional law, transformed each state appellate court into whatt in reality amounts to another sentencing jury. After Clemons, a defendant may find his fate settled in the first instance not by a jury, but by a distant appellate court.

1. The Parth to Clemons

The origins of the appellate jury may be traced to Zant v. Stephens,(84) a 1983 case. The respondent in Stephens was sentenced to death in Georgia. Subsequently, in an unrelated case, the Georgia Supreme Court invalidated one of the aggravating circumstances on which Stephen's death sentence had been based.(85) On appeal, the Georgia Supreme Court upheld Stephen's death sentence, despite the existence of the invalid aggravator. Reversing the Fifth Circuit Court of Appeals, the United States Supreme Court affirmed the Georgia court's decision to uphold the sentenced rather than to vacate it and remand for resentencing.(86)

In "threshold states," such as Georgia, aggravators serve only to define the threshold past which a defendant becomes "death eligible." Once the jury finds the presence of a single aggravator, the defendant crosses the threshold and enters the death-eligible class. The jury thereafter possesses almost wholly unfettered discretion to consider whatever evidence it believes is relevant to its decision.(87) It is not required to weigh aggravators against mitigators. The Court in Stephens therefore reasoned that although the defedant's death sentence rested in part on an invalid aggravator, he was still within the death- eligible class because two other aggravators remained to push him across the critical thresholdd.(88) Moreover, the evidence that had been introduced under the invalid aggravator's auspices would have been admissible on other grounds.(89) So although the Georgia Supreme Court no doubt reevaluated the validity of Stephen's sentence, it second-guessed the sentencing jury's decision only insofar as it decided that attaching a legal label to otherwise admissible aggravating evidence made no material difference to the eventual outcome.(90) The jury's decision, the Georgia Supreme Court speculated, would have been the same, even if the invalid aggravator had never been formally presented to them.(91)

By authorizing state tribunals to revisit the jury's delicate sentencing calculus only where the legal label "aggravating" had been improperly attached to admissible evidence, Stephen's appeared at the time to be an innocuous, almost unnoticeable, grant of death-selection power to state courts. Yet five years later, in Satterwhite v. Texas,(92) the Court expressly sanctioned what had been dormant in Stephens: the application of harmless error analysis to constitutional errors in capital sentencing.(93) Satterwhite protested that he had been examined by a state-appointed psychiatrist without first having been informed of his right to counsel. Because under the Texas capital sentencing statute the results of a psychiatrist's examination may be used to demonstrate future dangerousness--the key determinant of life or death under the Texas scheme(94)--the examination violated Satterwhite's Sixth Amendment rights.(95) The Supreme Court agreed with Satterwhite that Texas had violated his right to counsel but nonetheless endorsed the decision of the Texas Court of Criminal Appeals to subject that constitutional violation to harmless error analysis. Though the Court ultimately found the error nor harmless,(96) had it initially treated the violation as reversible per se there would have been no need to guess how the unconstitutionally obtained psychiatric testimony weighed upon the jury's mind. As Justices Marshall emphasized in dissent, when an appellate court applies harmless error analysis to the sentencing determination in a capital case, it "substitute[s] its judgment of what the sentencer would have done in the absence of constitutional error for an actual judgment of the sentencer untainted by constitutional error."(97)

2. Clemons v. Mississippi

When a state appellate court applies harmless error analysis to the death-selection decision, some deference is still paid to the jury's initial judgment, because under Chapman v. California(98) the error must be harmless "beyond a reasonable doubt."(99) Yet this last remaining degree of deference appears finally to have been withdrawn in Clemons v. Mississippi.(100) Unlike in Georgia, where aggravators serve only to define the death-eligible threshold, in Mississippi aggravating circumstances must be weighed against mitigating circumstances. Only if aggravators outweigh mitigators is the jury authorized, though not required, to impose death. The jury in Clemons sentenced the defendant to deth after having found two aggravating circumstnaces and no mitigating circumstances that outweighed them.

On direct appeal, the Mississippi Supreme Court invalidated one of the aggravating circumstances used to condemn Clemons. The court found the "especially heinous, atrocious or cruel" aggravator unconstitutionally vague.(101) Yet rather then remand for resentencing, the Mississippi high court decided to salvage Clemon's death sentence by reevaluating the evidence itself and concluding that death was warranted. With four Justices dissenting, the United States Supreme Court affirmed the state court's decision to recalculate the sentence anew rather than to remand. Nothing in the Court's capital jurisprudence, Justice White wrote, prevented the Mississippi Supreme Court from independently reassessing Clemon's sentence. The Mississippi courtt was free to reweigh the mitigating circumstances against the aggravating ones for itself.(102)

The dissenters thought otherwise. In their view, when an appellate court acts as Clemons authorizes it to act, it ceases to be an appellate court. It has instead "assumed for itself the role of sentencer."(103) For Justice Blackmun, "[t]he logical implication of the majority's approach"(104) was unmistakable. After Clemons, he said, "no trial-level sentencing procedure need to conducted at all. Instead, the record of a capital trial (including a sentencing hearing conducted before a court reporter) might as well be shipped to the appellate court, which then would determine the appropriate sentence in the first instance."(105) Convinced that an appellate court could apply the death penalty as consistently and reliably as a jury, the Clemons majority turned a blind eye to the need for capital sentencing to be sensitive to "the diverse frailties of humankind,"(106) intangibles an appellate court cannot hope to give their due. "[A] sentence of death," Justice Blackmun observed, "should be pronounced by a decisionmaker who will look upon the face the of the defendant as he renders judgment."(107) Appellate sentencing, he wrote, was a "bloodless alternative"(108) to the jury, an alternative which streamlined the process, but at an "intolarable"(109) cost.

III. Death and Politics

The decision who dies can be analyzed as two distinct elements: norm selection and death selection. With each decision, the Court's recent jurisprudence has deliverd the power to decide who dies more and more into the hands of actors beholden to politics. There are compelling reasons to believe, however, that once politics has decided to install the death penalty in the first place, its role in the penalty' administration should come to an end. For when politics selects the constitutional norms meant to confine the death penalty, the Eight Amendmet is drained of its integrity as a constitutional principle. And when politics selects who dies, the humanity of the condemned is diminished, and diminished with it, ultimately, is our own.

A. Politicizing Norm Selection

Constitutional adjudication does not take place in a political vacuum. The reigning values and sentiments of the day, or perhaps of yesterday, are bound to leave their mark on the face of constitutional doctrine. However, it is axiomatic tht a constitution, especially a bill of rights, is rendered idle to the extent that its content is made to depend directly on the fallout from ordinary partisan politics. When the Court structures doctrine in a way that empowers state legislatures to define constitutional norms, those norms begin to lose their status as constitutional norms. They become something less. Where the norms at stake are also those governing the death penalty, the potential erosion of constitutional protections becomes acute. Nearly eighty percent of the population voice support for capital punishment in some form or another.(110) To delegate norm selection to state legislatures under these circumstances will inevitably jeopardize the Eighth Amendment's ability to act as a meaningful check on the majority's impulse, born of fear and frustration, to execute.

The Eighth Amendment's integrity is likwise at risk when the power to select norms is removed from the federal courts and entrusted largely to state appellate courts. Champions of the federal courts, boasting the federal courts' institutional insularity, esprit de corps, and expertise on federal questions, tend to impute to all federal courts at all times preeminence over state courts. Any suggestion of parity, they say, is myth.(111) For their part, champions of state courts avoid romanticizing the federal bench. Some believe, moreover, that the poor showing of Southern state courts during the civil rights movement has unduly tarnished their standing.(112) From this perspective, it is unsurprising that state courts have not in general embarked on any bold initiatives. With federal courts filling the field, it would be inexpedient for state courts to expend needlessly their limited institutional capital on the protection of federal rights. Treated as second-class citizens, state courts have live up, or down, to what has been expected of them. Only when power is granted, champions of state courts say, can its responsible exercise begin to follow.(113)

When the question of parity is considered in the abstract, it admits no sure resolution.(114) Placed in a more specific context, however, the question assumes a more manageable form. Where the death penalty supplies the context, experience suggests that the institutional limitations on state courts, combined with the overwhelming support the death penalty currently enjoys, make it improvident to trust wholly in the capacity of state courts to safeguard the rights of capital petitioners. While it is true that a numbere of state supreme courts have reawakened their state constitutions in order to reinvigorate some of the rigths weakened by the Supreme Court,(115) this renaissance has not reached the death penalty. Only rarely have state courts found the death penalty offensive to state constitutional norms.(116) And, not unexpectedly, popular response to these actions has been uniformly hostile. When a state court has ventured to abolish the penalty as repugnant to the state constitution, the people have amended the document, embedding the penalty in the state's supreme law and insulating it from judicial review. Even when state courts have tried to be more circumspect, reversing death sentences on a case-by-case basis rather than gambling on wholesale abolition, the lack of execution has drawn public attention sooner or later. The offending judges have sometimes been removed in retention elections, though veiled hints alone have usually sufficed to secure compliance with popular will.(117) Lacking the institutional wherewithal of the federal courts, state judges musts either relent or face ouster.

The Rehnquist Court continues to be impatient with the pleas of capital petitioners, and the motif of its recent decisions instructs the lower federal courts to issue the Great Writ sparingly.(118) Yet the alternative to federal ccourt oversight--bestowing upon the state courts stewardship of the rights of death-sentenced inmates--promises an even darker future for the Eighth Amendment.

B. Politicizing Death Selection

Because "death is qualitatively different"(119) from other punishments, the Court has come to recognize that the sentence imposed at the penalty stage must "reflect a reasoned moral response to the defendant's background, character, and crime."(120) The principle that each defendant is to be treated "with that degree of respect due the uniqueness of the individual" (121) in turn requires the sentencing authority itself to possess certain characteristics. Two features in particular foster, though do not guarantee, that the sentence imposed will be a moral product: moral independence and moral proximity. State legislatures and state appellate courts lack both these attributes. Thus, the more we delegate death-selection power to these actors, the more we threaten to disregard the humanity of the condemned.

The power to decide who dies carries with it a "truly awesome responsibility."(122) For responsibility to be meaningful and tangible, however, the power to sentence must be vested in an authority wo is morally independent. That is, it msut be vested in a sentencing authority free to render her decision according to her own conscience and convictions.(123) Where politically responsible actors make the death-selection decision, however, moral independnece is seriously attenuatd, if not foregone altogether. Political considerations crowd out, or mix with, moral ones, thereby tainting the deliberative process and destroying the moral credetials of the product. Being subject to political pressures, neither state legislatures nor state appellate courts can ever fully possess the virtue of moral independence.(124)

Moral proximity, the imperative that he who sits in judgment look upon he who i to be judged and possibly condemned, is another attibute of a morally responsive and responsible sentencer. As Justice Blackmun has said, to treat a defendant as a human being "surely requires a sentencer who confronts him in the flesh."(125) Neither state legislatures nor appellate courts, however, will ever confront those whom they would condemn. State legilators enact statutes that condemn descriptions of people, not real people. No description can anticipate all the imponderables that a sentencer must consider in order for her decision to be a moral one. Similarly, a state appellate court is too distant and aloof, however much moral imagination its members bring to their task. A jury, in contrast, is free to consider in its sentencing determination a host of intangibles--few, if any, of which an appellate record can adequately convey.(126) The prospect that an appellate court, sitting calmly and with detachment, will feel toward the condemned any "shuddering recognition of kinship,"(127) recognition necessary for a "reasoned moral response," seems remote.

Conclusion

The Court's recent death penalty jurisprudence is conspicuous for the way it has remitted to politics, both over norm and death selection, the power to decide who dies, Decisional power has by degrees been consigned to state legislatures and state appellate courts, moving away from juries and the federal courts. Norm selection and death selection are thus vested to a larger extent in institutions that are politically-electorally accountable. The power to decide who dies has, consequently, been brought closer to "We the People."For the unabashed democrat, these trends may be cause for celebration. It is, however, important to acknowledge and understand the risks involved when we politicize' the way we decide who dies. In an enterprise where our common humanity is already in jeopardy, to allocate to politics even more power to decide who dies can in the end only worsen our odds.

(1) See, e.g., Franklin E. Zimring & Gordon Hawkins, Capital Punishment and the American Agenda 95-106 (1986) (analogizing system to game of "chicken"); Robert A. Burt, Disorder in the Court: The Death Penalty and the Constitution, 85 Mich. L. Rev. 1741, 1819 (1987) (describing how system creates "shell game of moral accountability"); Stephen Gillers, The Quality of Mercy: Constitutional Accuracy at the Selection Stage of Capital Sentencing, 18 U.C. Davies L. Rev. 1037, 1107-10 (1985) (arguing undivided sentencer responsibility prerequisite for constitutionally accurate sentence); cf. Michael Foucault, Discipline and Punish: The Birth of the Prison 9 (Alan Sheridan trans., 1979) (observing that "[p]unishment . . . will tend to become the most hidden part of the penal process"); Robert Cover, Violence and the Word, 95 Yale L.J. 1601, 1626 (1986) ("The most elementary understanding of our social practice of violence ensures that a judge know that she herself cannot actually pull the switch.").

(2) Mello offers the following worst case scenario:

[A] jury recommendation of death despite some doubt, in the knowledge that the case will be

reviewed; judicial affirmation, based on deference to the jury's decision; a denial of clemency

because the governor feels that the courts have spoken; execution, because if it was wrong

someone would have done something about it earlier in the process. Michael Mello, Taking Caldwell v. Mississippi Seriously: The Unconstitionality of Capital Statutes That Divide Sentencing Responsibility Between Judge and Jury, 30 B.C.L. Rev. 283, 327 (1989).

(3) Jason de parle, Louisiana Diarist: Killing Folks, The New Republic, Jan. 30, 1984 at 43, 43 (commenting on execution of Robert Wayne Williams in Louisiana electric chair); see also Jason DeParle, Abstract Death Penalty Meets Real Execution, N.Y. Times, June 30, 1991, at E2 (suggesting Louisiana juries refused to return death sentences after spate of recent executions). The petitioner in McCleskey v. Kemp, 481 U.S. 279 (1987), identified a problem similar to the one De Parle noticed. That is, the system produces a pattern of racially discrimination sentencing, even though, to paraphrase DeParle, "no one seems to do the discriminating." Cf. McCleskey v. Kemp, 481 U.S. 279 (1987) (holding statistical evidence demonstrating racially disparate sentencing insufficient to show equal protection orEighth Amendment violation); Randall L. Kennedy, McCleskey v Kemp: Race, Capital Punishment, and the Supreme Court, 101 Harv. L. Rev. 1388, 1405 (1988) ("[T]he doctrine of purposeful discrimination insulates entirely many of the unconscious ways in which prejudiced social values give rise to differential treatment on the basis of race.").

(4) "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.

(5) See, e.g. Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion) (holding death penalty disproportionate for rape of adult woman where victim not killed).

(6) See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion) (upholding Georgia's guided discretion death penalty statute).

(7) Trop v. Dulles, 356 U.S. 86, 101 (1958) (holding Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"); see also Ford v. Wainwright, 477 U.S. 399 (1986) (holding execution of insane inconsistent with evolving standards); Roberts v. Louisiana, 428 U.S. 325 (1976) (holding mandatory death penalty inconsistent with evolving standards).

(8) See, e.g., Margaret Jane Radin, The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989, 1039-42 (1978) (describing normative approach in terms of arriving at "coherent moral position").

(9) Some go so far as to urge that the Eighth Amendment's content should be gauged through reference to some fixed historical standard. See, e.g., Raoul Berger, Death Penalties: The Supreme Court's Obstacle Course 8-9 (1982) (arguing Eighth Amendment bans only those punishments considered cruel and unusual at time it was adopted).

(10) See, e.g., Arthur J. Goldberg & Alan M. Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1778-98 (1970); Radin, supra note 8, at 1030, 1042-60.

(11) 408 U.S. 238 (1972) (per curiam) (holding death penalty, as then currently adminintered, cruel and unusual punishment in violation of Eighth Amendment).

(12) Id. at 281 (Brennan, J., concurring) ("[A] punishment must not by its severity be degrading to human dignity."); id. at 371 (Marshall J., concurring) ("In striking down capital punishment . . . [w]e achieve a major milestone in the road up from barbarism.") (citation omitted) (internal quotations omitted).

(13) The plurality consists of Chief Justice Rehnquist and Justices White, Scalia, and Kennedy. Justice O'Connor continues to believe that substantive Eighth Amendment analysis requires the Court to enter into some form of normatively based proportionality review. See Standford v. Kentucky, 492 U.S. 361, 382 (1989) (O'Connor, J., concurring); Penry v. Lynaugh, 492 U.S. 302, 335 (1989) (O'Connor, J.). In neither Stanford nor Penry, however, did Justice O'Connor find that the death penalty was always disproportionate for youths or the mentally retarded. See Standford, 492 U.S. at 382 (O'Connor, J., concurring; Penry, 492 U.S. at 338 (O'Connor, J.). In neither case, he reasoned, could it be said that all youthful offenders or all who labored under some mental deficiency lacked the moral culpability necessary to make death fitting; accord Thompson v. Oklahoma, 487 U.S. 815, 853 (1988) (O'Connor, J., concurring).

(14) 492 U.S. 361 (1989).

(15) But cf. Thompson, 487 U.S. 815 (1988) (plurality opinion) (holding Amendment prohibits execution of person under age 16 at time of offense). See generally Victor L.Streib, Death Penalty for Juveniles 21-40 (1987) (arguing that eighth Amendment principles prohibit execution of those under age eighteen).

(16) 492 U.S. 302 (1989)

(17) It remins open after Penry, however, whether or not the Eighth Amendment still prohibits the execution of those who are so profoundly retarded that they are oblivious to the state's intention to execute them. cf. id. at 332-33.

(18) Even though the Court's methodology relies on a relatively simple formula, disagreement can still erupt. See e.g., Thompson, 487 U.S. 815 (displaying disagreement over inclusion of abolitionist states when evaluating whether or not contemporary standards of decency prohibit execution of 15-year olds).

(19) See Stanford, 492 U.S. at 379 (plurality opinion). Justice Scalia, togerther with chief Justice Rehnquist, aspires to anchor the Eighth Amendment in time through the concept of "unusualness," a notion that hitherto has not received much attention. Before the Eighth Amendment is offended,they insist, a punishment must be both "cruel." See Harmelin v. Michigan, 111 Ct.2680, 2691 (1991) (Scalia, J.); Standford, 492 at 378 (plurality opinion); Penry, 492 U.S. at 351 (Scalia, J., concurring in part and dissenting in part). On this view, an admittedly cruel punishment is constitutionally permissible so long as it is not "unusual." Thus, a cruel method of punishment is constitutional so long as it is "regularly or customarily employed." See Harmelin, III S. Ct. at 2691 (Scalia, J.) (citations omitted). The "parade of horribbles" this view naturally invites dismissed by Justice Scalia, in part because he does not believe the parade will "materialize." See id. at 2697 n.11. Scalia to this view even as he acknowledges that what is today an overly imanigative parade of horribles maynot look so horrible after the demos and the court have slid down tomorrow's slippery slope. See id.

(20) See Stanford, 492 U.S. at 370 (quoting McCleskey v. Kemp, 481 U.S. 279, 300 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976))) ("'[F]irst among the "'objective indicia that reflect the public attitude toward a given sanction"' are statutes passed by society's elected representatives."). Justice O'Connor, too, would give special respect to state legislative enactment. See Thompson, 487 U.S. at 849 (O'Connor, J., concurring) (agreeing that decisions of state legislatures provide "most reliable signs of a society-wide consensus").

(21) Stanford, 492 U.S. at 391 (Brennan, J., dissenting).

(22) Id. at 384.

(23) Id. at 383, 391-405; see also Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion) But see Harmelin, 111 S. Ct. at 2686 (Scalia, J.) (concluding "Eighth Amendment contains no proportionality guarantee").

(24) Stanford, 492 U.S. at 391 (Brennan, J., dissenting); see also Goldberg & Dershowitz, supra note 10, at 1782 (interpreted positively, Eighth Amendments "only function would be to legitimize advances already made by the other departments [of government] and opinions already the conventional wisdom").

(25) Furman v. Georgia, 408 U.S. 238, 269 (1972) (per curiam) (Brennan, J., concurring) (quoting Trop v. Dulles, 356 U.S. 86, 104 (1958)). Thus, if enough state legislatures enact into law that "drug kingpins" should die solely because they have trafficked in narcotics, it is to imagine how the "evolving standards of decency" doctrine could stay the executioner's hand. Cf. Sandra R. Acosta, Note, Imposing the Death Penalty on Drug Kingpins, 27 Harv. J. On Legis. 596, 606-10 (1990) (suggesting that death penalty for drug kingpins may pass constitutional muster.) Only the idea that such a penalty would be disproportionate to the crime, an idea still viable but now largely limited to capital cases, see Harmelin, 111 S. Ct. at 2701-02, could impede the state.

(26) See, e.g., Barefoot v. Estelle, 463 U.S. 880, 915 (1983) (Marshall, J., dissenting) (indicating that 70% of those capital defendants seeking habeas corpus in federal court obtained relief); David Bruck & Leslie Harris, habeas Corpse, The New Republic, July 15 & 22, 1991, at 10 ("In capital cases decided over the past fifteen years, federal courts have found such violations in no fewer than 40 percent of the convictions and sentences reviewed."); Rehnquist Urges on Appeals of Death Penalty, N.Y. Times, May 16, 1990, at A1 ("In recent years, more than half of all state court death sentences have been overturned by Federal courts during habeas corpus proceedings.").

(27) 489 U.S. 288 (1989) (plurality opinion).

(28) See, e.g., James Liebman, I Federal Corpus and Procedure [section] 22A.1, at 134 (Supp. 1991) (citing cases).

(29) Teague, 489 U.S. at 310.

(30) 492 U.S. 302, 314 (1989).

(31) See, e.g., Sanders v. United States, 373 U.S. 1, 18-19 (1969) (holding federal courts have "the power--and, if the ends of justice demand, the duty--to reach the merits of claims on successive petitions"); Fay v. Noia, 372 U.S. 391 (1963) (holding federal claims cognizable in habeas corpus proceedings unless petitioner "deliberately bypassed" independent and adequate state procedures for raising claims), overruled by Coleman v. Thompson, 111 S. Ct. 2546 (1991); Townsend v. Sain, 372 U.S. 293, 312 (1963) (requiring federal courts in habeas corpus "hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court"); cf. Brown v. Allen, 344 U.S. 443 (1953) (permitting relitigation in federal court of constitutional claims decided in state court). See generally Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 Yale L.J. 1035, 1041 (1977) (explaining that Warren Court's expansion of habeas corpus was remedial counterpart of its "constitutionalization of criminal procedure").

(32) See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977) (requiring "cause and prejudice" to be shown to excuse state procedural default); Stone v. Powell, 428 U.S. (1976) (holding Fourth Amendment claims not cognizable in federal habeas corpus where state court has provided "full and fair" opportunity to litigate issue); cf. R. Lea Brilmayer, State Forfeiture Rules and Federal Review of State Criminal Convictions, 49 U. Chi. L. Rev. 741, 752 (1982) (commenting that "federal collateral review of procedural defaults has contracted under the Burger Court").

(33) See generally Joseph L. Hoffmann, The Supreme Court's New Vision of Federal Habeas Corpus for State Prisoners, 1989 Sup. Ct. Rev. 165, 166-67 (summarizing Teague's impact on habeas doctrine, theory, and practice). Although Justice Scalia has endorsed Teague's view of retroactivity in the criminal context, he appears to take a different view of retroactivity in the civil context. See American Trucking Ass'ns v. Smith, 110 S. Ct. 2323, 2343 (1990) (Scalia, J., concurring in judgment). His respective positions appear irreconcilable because his opinion in American Trucking Associations is premised on a view of the Constitution that transcends any difference between the criminal and civil contexts. See id. ("Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it: the notion that our interepretation of the Constitution in a particular decision could take prospective form does not make sense."): cf. John Blume & William Pratt, The Changing Face of Retroactivity, 58 UMKC L. Rev. 581, 591 n.90 (1990) (highlighting inconsistency in Justice Scalia's position); Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1759 n.147 (1991) (noting Blackstonian streak in Justice Scalia's jurisprudence). But see Paul J. Mishkin, The Supreme Court, 1964 Term--Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 62-70 (1965) (discussing symbolic importance of Blackstonian "declaratory theory" of law).

(34) 110 S. Ct. 1212 (1990).

(35) 110 S. Ct. 1257 (1990).

(36) Butler, 110 S. Ct. at 1217.

(37) Id.; see also Saffle, 110 S. Ct. at 1261 (asserting petitioner seeks new rule if prior cases "inform, or even control or govern, the analysis of his claim").

(38) See supra notes 13-25 and accompanying text.

(39) Cf. Butler, 110 S. Ct. at 1222 (Brennan, J., dissenting) ("State courts essentially are told today that, save for outright |illogical' defiance of a binding precedent precisely on point, their interpretations of federal constitutional guarantees--no matter how cramped and unfaithful to the principles underlying existing precedent--will no longer be subject to oversight through the federal habeas system.")

(40) Cf. Saffle, 110 S. Ct. at 1265 n.2 (Brennan, J., dissenting) (criticizing reliance on lower court cases).

(41) Sawyer v. Smith, 110 S. Ct. 2822, 2831 (1990) (citation omitted). Applied to liability for the death penalty, as opposed to criminal liability per se, the first exception exempts from Teague's retroactivity bar defendants whom the Eighth Amendment places beyond the reach of the death penalty because of their status or offense, see Penry v. Lynaugh, 492 U.S. 302, 328-29 (1989).

(42). See supra notes 6-25 and accompanying text.

(43) See generally National Coalition to Abolish the Death Penalty, 1990 Survey of State Legislation (1990) (detailing recent legislative efforts to expand death penalty).

(44) 394 U.S. 244 (1969).

(45) 401 U.S. 667 (1971).

(46) Desist, 394 U.S. at 262 (Harlan, J., dissenting

(47) Mackey, 401 U.S. at 693 (Harlan, J., dissenting in two judgments and concurring in third) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)).

(48) Id.

(49) 110 S. Ct. 2822 (1990).

(50) Sawyer, 110 S. Ct. at 2833 (Marshall, J., dissenting).

(51) 472 U.S. 320 (1985).

(52) Sawyer, 110 S. Ct. at 2828, 2831.

(53) Id. at 2831 (quoting Brief for Petitioner at 30 (No. 89-5809)).

(54) Id.

(55) Id. at 2831-33. Indeed, faith in due process-fundamental fairness now appears to be a touchstone for the Court's retrenchment of the heightened protections the Eight Amendment once provided. See, e.g., Payne v. Tennessee, 111 S. Ct. 2597, 2608 (1991) (expressing faith in due process to prevent error); cf. Kathleen Patchel, The New Habeas, 4 Hastings L.J. 941, 1021 (1991) (noting how Court's recent habeas corpus jurisprudence may reproduce structure of federal-state relations existing under preincorporation fundamental fairness standard).

(56) Cf. Dugger v. Adams, 489 U.S. 401, 407 (1989) (indicating further limitation on Caldwell by requiring showing "that the remarks to the jury improperly describe [] the role assigned to the jury by local law") (emphasis added).

(57) Robert Weisberg, A Great Writ While It Lasted, 81 J. Crim. L. & Criminology 9, 24 (1990) (referring to Gideon v. Wainwright, 372 U.S. 335 (1963)).

(58) Id.

(59) Hoffman, supra note 33, at 191. The lower federal courts will be able to formulate and apply new rules of constitutional criminal procedure only in federal prosecutions or when the rule falls within one of Teague's exceptions. Id. at 192. Inasmuch as Teague is meant to protect the interests of the state, federal courts may formulate and apply nw rules where the state waives Teague. Cf. Collins v. Youngblood, 110 S. Ct. 2715, 2718 (1990) ("Although the Teague rule is grounded in important considerations of federal-state relations, we think it is not |jurisdictional' in the sense that this Court, despite a limited grant of certiorari, must raise and decide the issue sua sponte.") (citation omitted); Steven M. Goldstein, Chipping Away at the Great Wit: Will Death Sentenced Federal Habeas Corpus Petitioner Be Able to Seek and Utilize Changes in the Law?, 18 N.Y.U Rev. L. & Soc. Change 357, 411 (1990-91) (arguing that Teague is waivable).

(60) See e.g., Hoffman, supra note 33, at 192; Kit Kinports, Habeas Corpus, Qualified Immunity and Crystal Balls: Predicting the Course of Constitutional Law, 33 Ariz. L. Rev. 115, 179 (1991); Weisberg, supra note 57, at 32; cf. Cover & Aleinikoff, supra note 31, at 1046-68 (discussing how habeas corpus creates dialogue over constitutional doctrine).

(61) See, e.g., Hoffman, supra note 33, at 190-92; Patchel, supra note 55, at 1009; cf. Marc M. Arkin, The Prisoner's Dilemma; Life in the Lower Federal Courts After Teague v. Lane, 69 N.C. L. Rev. 371, 391 (1991) (finding that most lower federal courts have construed Teague's bar broadly). Lately, the Court has fortified a host of procedural barriers preventing federal courts from reaching the claims of capital petitioners on the merits. See, e.g., Coleman v. Thompson, 111 S. Ct. 2546 (1991) (stating that "federal claims must fairly to rest primarily on federal law or to be interwoven with federal law" before presumption favoring federal jurisdiction applies and overruling Fay v. Noia, 372 U.S. 391 (1993)); McCleskey v. Zant, 111 S. Ct. 1454 (1991) (applying cause-and-prejudice test to abusive claims in successive petitions); Lewis v. Jeffers, 110 S. Ct. 3092 (1990) (Kennedy, J., concurring) (inviting states to apply to deferential Jackson standard in determining whether state court has followed state law); Demosthenes v. Baal, 110 S. Ct. 2223 (1990) (holding state court's finding of condemed prisoner's compentency to waive postconviction litigation entitled to presumption of correctness); cf. Delo v. Stokes, 110 S. Ct. 1880, 1882 (1990) (Kennedy, J., concurring) (inviting states to apply to Court to vacate stays of execution when federal courts of appeals fail to protect them "from the consequences of a stay entere without an adequate basis"); Whitmore v. Arkansas, 110 S. Ct. 1717 (1990) (holding death-row inmate did not have standing in his individual capacity or as "next friend" to litigate whether Eighth Amendment requires automatic direct appeal in capital case where defendant knowingly, intelligently and voluntarily waived right to appeal conviction and sentence).

However, to the extent that the law of habeas corpus continues to require federal courts to determine whether a capital defendant is "innocent" of the death penalty for purposes of procedural default, of abuse of the writ, and (perhaps) of retroactivity, the federal courts retain an important, though very limited, role in capital sentencing. See, e.g., Smith v. Murray, 477 U.S. 527 537-38 (1986); cf. Bruce Ledewitz, Habeas Corpus as a Safety Value for Innocence, 18 N.Y.U. Rev. L. & Soc. Change 415 (1990-1991) (arguing that federal courts can always intervene to prevent execution of defendant who is "actually innocent" of death sentence impose on him).

(62) See infra notes 110-17 and accompanying text.

(63) A state legislature can also draw power toward itself through the kinds of rules it enacts and through the ways it structures their interaction. First, it can enact vague and open textured rules that, although unable to constrain meaningfully the jury's discretion, operate nonetheless as a legal peg upon which the jury can hang responsibility. The jury can rationalize that the rule required the result. The most notorious rule of this kind is the "catch all" aggrator found in most death penalty statutes, authorizing death if the crime was "outrageously heinous, atrocious, or cruel," or some variation on that basic theme. The Court has required state courts to impose a limiting construction on these aggravators. See Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion); accord Shell v. Mississippi, 111 S. Ct. 313 (1990) (per curiam); Maynard v. Cartwright, 486 U.S. 356 (1988). It continues to be unclear, however, just how vigorously the Court will enforce this requirement. See, e.g., Lewis v. Jeffers, 110 S. Ct. 3092 (1990) (finding limiting construction sufficient); Walton v. Arizona, 110 S. Ct. 3047 (1990) (same). See generally Richard A. Rosen, The "Especially Heinous" Aggravating Circumstances in Capital Cases--The Standardless Standard, 64 N.C. L. Rev. 941 (1986) (arguing state courts' limiting construction on "catch-all" aggravators do not constrain discretion).

Second, the legislature can through is capital statute ask the jury to decide whether or not the defendant will pose a future danger, either to society at large or to a prison population. See, e.g., Jurek v. Texas, 428 U.S. 262, 269 (1976) (plurality opinion). The state usually frames the issue of future dangerousness as a question health experts are especially qualified to answer. This aggravating circumstane therefore invites the jury to delegate its obligation to gauge the defendant's future dangerousness to a psychiatrist or other mental health professional. Obliged to judge the worth of another human being's life, jurors naturally might be eager to defer to expert opinion. See generally Claudia M. Worrell, Psychiatric Prediction of Dangerousness in Capital Sentencing: The Quest for Innocent Authority, 5 Behav. Sci. & L. 433, 438-43 (1987) (discussing factors prompting jurors to defer to psychiatrists). Unfortunately, the evidence suggests that expert opinion, like lay opinion, will be wrong more often than it will be right. See, e.g., Barefoot v. Estelle, 463 U.S. 880, 916-22 (1983) (Blackmun, J., dissenting) (reporting evidence that psychiatric testimony about future dangerousness is two times out of three). Some mental health professionals play regular cameo roles for the prosecution at capital trials. Dr. James Grigson, also known as Dr. Death, is perhaps the most infamous in this respect. See e.g., Cameron Barr, Paging Dr. Death, Am. Law., Mar. 1989, at 165; They Call Him Dr. Death, Time June 1, 1981, at 64. Moreover, not only does the future dangerousness aggravator transfer responsibility to an expert, it also makes what is essentially a moral decision look like a scientific one. In this way the laws of science can be made to assume responsibility. Cf. Robert A. Burt, Taking Care of Strangers 72-91 (1979 (discusssing Milgram experiment); Herbert C. Kelman & V. Lee Hamilton, Crimes of Obedience (1989) (examining social psychology surrounding immoral or illegal acts committee under orders from authority); Stanley Milgram, Obedience to Authority (1974).

Finally, the legislature can arrange the relationship between the rules so as to achieve "double counting." That is, it can make a particular factor both a statutory aggravating circumstances and an element in the definition of capital murder. Under this scheme, a defendant who is convicted of capital murder will already be death eligible when he reaches the penalty phase. See, e.g., Lowenfield v. Phelps, 484 U.S. 231 (1988) (finding no constitutional defect where sole aggravating circumstance found by jury at penalty phase duplicates element of underlying capital crime); Charles L. Black, Jr., Capital Punishment: The Inevitability of Caprice and Mistake 115 (2d e. 1981) (discussing double counting); Robert Weisberg, Deregulating Death, 1983 Sup. Ct. Rev. 305-330-31 (same). Another form of double counting occurs when the same underlying facts satisfying two or more aggravators. See, e.g., Valerie P. Hans, Death By Jury, in Challenging Capital Punishment 149; 165 (Kenneth C. Haas & James A. Inciardi A. Inciardi eds., 1988).

(64) 408 U.S. (1972) (per curiam).

(65) Id. at 309 (Stewart, J., concurring).

(66) 428 U.S. 280 (1976) (plurality opinion).

(67) 428 U.S. 325 (1976) (plurality opinion); see also Sumner v. Shuman, 483 U.S. 66 (1987) (holding mandatory death penalty for prison inmate convicted of murder while serving life sentence without possibility of parole unconstitutions); Roberts (Harry) v. Louisiana, 431 U.S. 633 (1977) (per curiam) (holding mandatory death panalty for killing of police officer unconstitutional).

(68) Cf. Weisberg, supra note 63, at 323 ("[S]tatutory descriptions of behavior, however finely drawn, are still generalizations.").

(69) Woodson, 428 U.S. at 304.

(70) Id.

(71) 110 S. Ct. 1078 (1990).

(72) 110 S. Ct. 1190 (1990).

(73) See generally Bruce S. Ledewitz, The Requirement of Death: Mandatory Language in the Pennsylvania Death Penalty Statute, 21 Duq. L. Rev. 103, 136-56 (1982) (arguing quasi-mandatory statutes fail to satisfy constitutional demand for reliability in capital sentencing).

(74) Boyde, 110 S. Ct. at 1195.

(75) See Blystone, 110 S. Ct. at 1082.

(76) See id. at 1082-84.

(77) Cf. id. at 1089 (Brennan, J., dissenting).

(78) See id. at 1088-89.

(79) On the distinction between comparative and noncomparative justice, see Joel Feinberg, Social Philosophy 98-99 (1973).

(80) 42 Pa. Cons. Stat. Ann.[section] 9711(d)(6) (Supp. 1982); see also Blystone, 110 S. Ct. at 1090 (Brennan, J., dissenting).

(81) Blystone v. Pennsylvania, 110 S. Ct. 1078, 1088 (1990) (Brennan, J., dissenting). The Texas capital sentencing scheme is also quasi-mandatory. See, e.g., Gillers, supra note 1, at 1075 (discussing Texas' "cryptomandatory death law"). Under it, "the law has predetermined what the punishment will be depending only on certain conditions. The jury, as factfinder, only determines whether those conditions exist. The judge then pronnounces sentence as the law requires." Hernandez v. State, 757 S.W.2d 744, 751 (Tex. Crim. App. 1988) (en banc) (emphasis added). Based on this description of the statute, the Texas Court of Criminal Appeals reach the remarkable conclusion that in Texas "nobody assesses punishment in a capital case." Id. (emphasis added). The law alone condemns. I am indebted to Robert McGlasson for this reference.

(82) Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion). In Walton v. Arizona, 110 S. Ct. 3047 (1990), however, Justice Scalia announced his intention to uphold mandatory statutes should the states again feel the need to resort to them. See id. at 3068 (Scalia, J., concurring in part and concurring in judgment). Justice Stevens considered Justice Scalia's position "reactionary." Id. at 3092 (Stevens, J., dissenting).

(83) 110 S. Ct. 1441 (1990).

(84) 462 U.S. 862 (1983); see also Barclay v. Florida, 463 U.S. 939 (1983).

(85) See Stephens, 462 U.S. at 867 (citing Arnold v. State, 224 S.E.2d 386, 391-92 (Ga. 1976)).

(86) Id. at 891.

(87) Before last Term, the jury was required to focus on the nature of both the offender and the offense. See, e.g., Lockett v. Ohio, 438 U.S. 586 (1978). The state could not introuduce evidence regarding the impact of the victim's death on family and friends, see Booth v. Maryland, 482 U.S. 496 (1987), nor could the prosecutor comment on the personal characteristics of the victim. See South Carolina v. Gathers, 490 U.S. 805 (1989). In Payne v. Tennessee, 111 S. Ct. 2597 (1991), the Court overturned Booth and Gathers, at least insofar as they barred the state from introducing evidence about the victim. The Court reserved judgment on the admissibility of evidence relating to the victim's survivors' "characterizations and opinions about the crime, the defendant, and the appropriate sentence." Payne, 111 S. Ct. at 2611 n.2.

(88) See Stephens, 462 U.S. at 878-80.

(89) See id. at 886.

(90) See id. at 891. But cf. id. at 905 (Marshall, J., dissenting) ("There is way of knowing whether the jury would have sentenced respondent to death if its attention had not been drawn to the unconstitutional statutory factor.").

(91) Id. at 888-89 (discussing Zant v. Stephens, 297 S.E.2d 1, 4 (Ga. 1982)); See also Barclay v. Florida, 463 U.S. 939 (1983) (upholding death sentence despite trial court's consideration of aggravator not available under state law); Goode v. Wainwright, 464 U.S. 78 (1983) (per curiam) (same).

(92) 486 U.S. 249 (1988).

(93) In the interim, the Court had delegated death-selection power to state appellate courts in a more indirect fashion. In Cabana v. Bullock, 474 U.S. 376 (1982), the Court authorized state appellate courts to make the factual finding that a capital defendant who had been convicted on a felony-murder theory had "killed, attempted to kill, or intended to kill." The Court had earlier held in Enmund v. Florida, 458 U.S. 782 (1982), that this factual finding must be made before a felon-murder defendant could be sentenced to death. As an factual question, the Enmund inquiry would ordinarily be within the province of the jury.

(94) See, e.g., Black, supra note 63, at 114-15.

(95) Satterwhite, 486 U.S. at 254; see also Powell v. Texas, 492 U.S. 680 (1989) (per curiam) (holding state's use of psychiatric testimony on issue of future dangerousness violated Sixth Amendment where defense counsel was not notified that examination by psychiatrist would be used for that purpose); Estelle v. Smith, 451 U.S. 454 (1981) (holding testimony of psychiatrist based upon court-ordered psychiatric examination where defendant not advised of constitutional rights violated Fifth, Sixth, and Fourteenth Amendments).

(96) See Satterwhite, 486 U.S. at 258.

(97) Id. at 263 (Marshall, J., dissenting); see also Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 Colum. L. Rev. 79, 82 (1988) ("[E]xisting understandings of harmless error standard enable appellate courts to perform fact-finding functions that the sixth amendment entrusts of a jury.").

(98) 386 U.S. 18 (1967).

(99) Id. at 24. See generally James C. Scoville, Note, Deadly Mistakes: Harmless Error in Capital Sentencing, 54 U. Chi. L. Rev. 740, 754-58 (1987) (arguing harmless error doctrine inapplicable to capital sentencing because appellate courts are institutionally unable to apply Chapman test).

(100) 110 S. Ct. 1441 (1990).

(101) Id. at 1452 n.1 (Blackmun, J., concurring in part and dissenting in part); see also Godfrey v. Georgia, 446 U.S. 420 (1980) (holding "catch all" aggravating circumstance requires limiting construction) (plurality opinion); accord Shell v. Mississippi, 111 S. Ct. 313 (1990) (percuriam); Maynard v. Cartwright, 486 U.S. 356 (1988).

(102) See Clemons, 110 S. Ct. at 1449; accord Parker v. Dugger, 111 S. Ct. 731, 738 (1991); Johnson v. Mississippi, 486 U.S. 578, 591 (1988) (White, J., concurring).

(103) Clemons, 110 S. Ct. at 1456 (Blackmun, J., concurring in part and dissenting in part).

(104) Id.

(105) Id.

(106) Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion).

(107) Clemons, 110 S. Ct. at 1460 (Blackmun, J., concurring in part and dissenting in part); cf. Caldwell v. Mississippi, 472 U.S. 320, 330 (1985) ("[A]n appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance.").

(108) Clemons, 110 S. Ct. at 1460 (Blackmun, J., concurring in part and dissenting in part).

(109) Id. at 1461.

(110) See, e.g., E.J. Dionne, Jr., Capital Punishment Gaining Favor as Public Seeks Retribution, Wash. Post, May 17, 1990, at A 12 (reporting 1988 Gallup pol foound 79% of Americans support death penalty). But see William J. Bowers, The Death Penalty's Shaky Support N.Y. Times, May 28, 1990, at A21 (claiming support for death penalty not as strong as polls suggest).

(111) E.g., Burt Neuborne, The Myth of Parity, 90 Harv. L. Rev., 1105 (1977; see also Gary Peller, In defense of Habeas Corpus Relitigation, 16 Harv. C.R.-C.L. L. Rev. 579, 666-68 (1982).

(112) See, e.g., Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm & Mary L. Rev. 605, 631 (1981); cf. G. Alan Tarr & Mary Porter, State Supreme Courts in State and Nation 74-82 (1988) (describing Alabama Supreme Court's response to civil rights movement). But see Michael E. Solimine & James L. Walker, Constitutional Litigation in Federal and State Courts: An Empirical Analysis of Judicial Parity, 10 Hastings Const. L.Q. 213, 225 n.62 (1983) (suggesting conventional wisdom may exaggerate degree of state supreme court hostility toward civil righs litigants).

(113) See. e.g., Engle V. Isaac, 456 U.S. 107, 128-29 n.33 (1982) ("Over the long term ... federal intrusions may seriously undermine the morale of our state judges."); Paul M. Bator, Finality in Criminal Law and Fderal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 506 (1963) ("The crucial issue is the possible damage done to the inner sense of responsibility, to the pride and conscientiousness, of a state judge in doing what is, after all, under the constitutional scheme a part of his business: the decision of federal question properly raised in state litigation.').

(114) Cf. Erwin Chemeinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. Rev. 233, 260 (1988) (questioning usefulness of evaluation which treat state and federal courts as aggregates).

(115) See gnerally William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977); Peter J. Gaile, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L. Rev. 731 (1982); Project Report: Toward an Activist Role for State Bills of Rights, 8 Harv. C.R.-C.L. L. Rev. 271 (1973).

(116) See People v. Anderson, 493 P.2d 880 (Cal.) (holding death penalty violates state constitution). cert. denied, 406 U.S. 958 *1972); District Attorney . Watson, 411 N.E.2d 1274 (Mass., 1980) (same). In each case, the eletorate responded with an amendment to the state constitution resinstating the death penalty. See Cal. Const. art. I, [section] 27; Mass. Const. pt. 1, rt. XXVI. The people of Oregon have also constitutionalized capital punishment in response to judicial action. See Katherine H. Waldo, The 1984 Oregon Death Penalty Initiatives: A State Constitutional Analysis, 22 Willamette L. Rev. 285, 288-89 (1986) (explaining how recent initiatives try to insulate death penalty from state constitutional challenge. In light of this history, it is hardly surprising that state court opposition to the death penalty is voiced more often only in dissent. See, e.g., People ex rel. Carey v. Cousins, 397 N.E.2d 809, 816 (IIl. 1979) (Ryan, J., dissenting), cert. denied, 445 U.S. 953 (1980); Adams v. State, 271 N.E.2d 425, 431 (Ind. 1971) (DeBruler, J., concurring and dissenting), modified, 284 N.E.2d 757 (Ind. 1972): McKenzie v. Osborne, 640 P.2d 368, 383 (Mont. 1981) (Shea, J., dissenting); State v. Ramseur, 524, A.2d 188, 300 (N.J. 1987) (Handler, J., dissenting); State v. Dicks, 615 S.W.2d 126, 132 (Tenn.) (Brock, C.J., dissenting), cert. denied, 454 U.S. 933 (1981); State v. Rupe, 683 P.2d 571, 598 (Wash. 1984) (Dolliver, J., concurring in result): Hopkinson v. State, 632 P.2d 79, 172 (Wyo. 1981) (Rose, C.J., dissenting in part and concurring in part), cert. denied, 455 U.S. 922 (1982).

(117) The ouster of Chief Justice Bird and two of her "liberal" colleagues from the California Supreme Court is a vivid illustration of the perils state court judges face when they manage to shut down the death-selection process. See John T. Wold & John H. Culver, the Defeat of the California Justices: the Campaign, the Electorate, and the Issue of Judicial Accountability, 70 Judicature 348 (1987) (discussing campaign to remove Chief Justice Bird): cf. Coleman v. McCormick, 874 F.2d 1280, 1295 n.89 (9th Cir.) (en banc) (Reinhardt, J., concurring), cert. denied, 110 S. Ct. 349 (1989) ("The recent experience of California's Supreme Court forcefully shows that the system of direct election of judges can impose public opinion upon |politically neutral' constitutional interpretation."). Until very recently, the New Jersey Supreme Court had reversed every death sentence on appeal. It affirmeed its first deat sentence at the same time that its actions were coming under political scrutiny. See, e.g., Joseph F. Sullivan, New Jersey's High Court Upholdss Death Sentence After Blocking 26, N.Y. Times, Jan. 25, 1991, at A1. See generally Ronald J. Tabak, The Death Of Fairnss: The Arbitrary and Capricious Imposition of the Death Penalty in the 1980s, 14 N.Y.U. Rev. L. & Soc. Change 797, 86-47 (1986) (describing backflash experienced by state court judges who appear to oppose death penalty).

(118) See cases cited supra note 61; cf. Marcia Coyle & Marianne Lavelle, Chilling Capital Appeals, Nat'l L.J. Mar. 11, 1991, at 1 (Justice Scalia, in capacity as administrative justice of Fifth Circuit, will no longer grant extensions of time for filing petition for writ of certiorari in capital cases where delay has occured because petitioner had no lawyer).

(119) Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion).

(120) California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring).

(121) Lockett v. Ohio, 438 U.S. 586, 605 (1978).

(122) McGautha v. California, 402 U.S. 183, 208 (1971).

(123) Cf. Stanton D. Krauss, Representing the Community: A Look at the Selection Process in Obscenity Cases and Capital Sentencing, 64 Ind. L.J. 617, 618 (1989) (describing members of capital juries as "free agent").

(124) The 1990 gubernatorial contest in Texas, California, and Florida offer glimpse into the new politics of death, a politics generating its own brand of dark one-upmanship. E.g., Richard Lacayo, The Politics of Life and Death, Time, Apr. 2, 1990, at 18; see also Lucy Howard & Ned Zeman, 1-800-Death, Newsweek, July 8, 1991, at 6 (reporting state senator established toll-free number so death penalty boosters could register support for execution of Harold Otey); cf. Hugo Adam Bedau, The Decline of Clemency in Capital Cases, 18 N.Y.U. Rev. L. & Soc. Change 255, 270 (1990-1991) (observing that governors often commute death sentences only when they no longer have future political ambitions): Daniel T. Kobil, The Quality of Mercy Strained: Wrestling Pardoning Power from the King, 69 Tex. L. Rev. 569, 607-10 (1991) (recounting how political pressures have influenced certain clemency decision); Paul W. Cobb, Jr., Note, Reviving Mercy in the Structure of Capital Sentencing, 99 Yale L.J> 389, 394 (1989) (describing how "political considerations" have led many governors to deny clemency). New York Governor Mario Cuomo, who has repeatedly vetoed bills that seek to reinstate the death penalty in New York, is a courageous exception to the rule. See, e.g., The Politics of Death, The Economist, Mar. 24, 1990, at 45, 46.

(125) Clemons v. Mississippi, 110 S. Ct. 1441, 1460 (1990) (Blackmun, J., concurring in part and dissenting in part).

(126) See, e.g., Caldwell v. Mississipi, 472 U.S. 320, 330 (1985).

(127) Whitherspoon v. Illinois, 391 U.S. 510, 520 n.17 (1968) (quoting Arthur Koestler, Reflections on Hanging 166-67 (1956)).
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Date:Oct 1, 1991
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