Comparative Proportionality Reviews Reconceptualized: Categorizing Mitigation and Satisfying the Eighth Amendment in the Death Penalty


An element of precariousness pervades the sentencing decisions juries make in death penalty cases. Although the principle of being judged by one’s peers as a reflection of societal judgment is a good one, variations in jurors’ experiences, exposures, and inclinations can cause juries to differ greatly in their decisions and their ability to reflect overarching social norms. Though most criminal defendants face the risk of unusually harsh sentences, the death penalty requires greater scrutiny because the consequences are irreparable.

According to the Supreme Court, the constitutional requirements imposed by the Eighth Amendment prohibition on cruel and unusual punishment evolve as society’s moral sentiments regarding punishment and respect for human dignity evolve. Thus application of the death penalty derives its legitimacy from present-day standards. Should the day come when society’s moral sentiments indicate that execution is no longer in compliance with our respect for human dignity, then the death penalty will cease to be constitutional. Until that day, individual defendants should be protected from the possibility of a jury judgment that runs afoul of general moral standards.

Sentences fail to represent prevalent sentiments not only when they are overtly aberrant or unreasonable, but also when they do not comport with current judgments about the kind and level of culpability that deserves death. While individual juries may not always approximate the moral standards of our society, jury judgments overall do provide such an approximation. In fact, the Court has identified jury judgments as a key indicator of current social sentiments.

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