In 1972 the United States Supreme Court invalidated existing state death penalty statutes in Furman v. Georgia. Although Furman reflected the temperament of a highly divided court, with each of the nine justices writing his own opinion, two positions within the plurality can be identified. Justices Marshall and Brennan adopted a per se position that capital punishment in any form was now offensive to the eighth and fourteenth amendments of the Constitution. In addition to finding that capital sentencing patterns reflected both the arbitrary and discriminatory infliction of the death penalty, both justices also examined objective indicia which suggested that contemporary moral standards no longer tolerated death as an acceptable state sanction. A second position of the Court’s plurality can be found in the opinions of Justices Douglas, White, and Stewart. Rejecting a per se position, these three justices noted that existing capital punishment statutes were constitutionally infirm in their form. The statutes provided capital sentencers with unbridled discretion, producing capital sentencing patterns that could only be described as “wanton” or “freakish.” Although it is not at all clear if there is a Furman holding, it is clear that if nothing else, Furman condemned the arbitrary and capricious infliction of the death penalty, such that “there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”

In response to Furman, state legislators drafted new death penalty statutes which attempted to restrict the discretion available to capital juries. These attempts to reform the administration of the death penalty took two general forms: guided discretion and mandatory statutes. Guided discretion statutes attempted to control sentencer discretion through the provision of enumerated aggravating and/or mitigating circumstances. These circumstances were intended to focus the sentencers’ attention on relatively objective characteristics of the offense and offender upon which sentences could be based, thereby rendering death sentences more uniform. Mandatory statutes, on the other hand, attempted to eliminate most discretion by modifying the substantive criminal law of murder, making the imposition of capital punishment mandatory upon a defendant’s conviction of a newly defined category of capital murder.

Soon after Furman, the Supreme Court had the opportunity to review the acceptability of both guided discretion and mandatory capital sentencing statutes. In Gregg v. Georgia, Proffitt v. Florida, and Jurek v. Texas, the Court upheld guided discretion statutes, while in Woodson v. North Carolina and Roberts v. Louisiana, it struck down mandatory schemes. In the Gregg decision, Justice Stewart, joined by Justices Powell and Stevens, held that the Georgia scheme of providing capital sentencers with enumerated aggravating circumstances adequately directed the attention of the jury to relevant sentencing criteria. Furthermore, consistency in capital sentencing would be enhanced under the Georgia scheme by the “important additional safeguard” of appellate review by the Georgia Supreme Court. The statute specifically required the state supreme court to review each death sentence to determine: (1) whether the evidence supports the jury’s finding of an aggravating circumstance, (2) whether the sentence was the product of passion, prejudice, or any other arbitrary factor, and (3) whether the sentence imposed is excessive compared with the sentence imposed in similar cases.

A similar position can be found in Justice White’s Gregg opinion, joined by Chief Justice Burger and Justice Rehnquist. White expected that the

Georgia statute’s provision of aggravating circumstances would guide the discretion of the jury so that “it can no longer be said that the penalty is being imposed wantonly and freakishly.”” Such a statute, he believed, “would escape the infirmities which invalidated [Georgia’s] previous system under Furman.” Justice White did not, however, consider the provision of aggravating factors in the Georgia statute to be sufficient. He noted that such a system for guiding juries “might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency.” As was true for Justice Stewart, the corrective to an aberrant jury for Justice White would be the review power of the Georgia Supreme Court, which had “the task of deciding whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or arbitrary fashion.”

Both plurality opinions in Gregg, then, predicted that greater uniformity in capital sentencing would be achieved by a statutory scheme that provided capital sentencers with standards for making the decision whether to impose a life or death sentence and independent appellate review of that decision by a court with statewide jurisdiction. A similar position was taken in Proffitt and Jurek.

In invalidating mandatory death penalty schemes in Woodson and Roberts, a plurality of the Court (Justices Stewart, Powell, and Stevens) observed that even under mandatory capital punishment statutes sentencers continued to possess considerable discretion, because they could avoid imposing a death sentence by refusing to convict defendants of capital crimes. The prospect of “jury nullification” caused by the failure of mandatory statutes to guide the discretion of the jury was exacerbated by a further defect: “there is no meaningful appellate review of the jury’s decision.”

Not only did the mandatory statutes of North Carolina and Louisiana fail to provide an adequate remedy for the central infirmity of Furman, the unbridled discretion of juries, they contained a new defect. By failing to allow juries to consider the unique features of each offense and offender, mandatory statutes permitted the failure to treat human beings with the dignity they deserve.

If Gregg, Proffitt, and Jurek make clear the importance of consistent, proportionate application of capital sentences, across similar cases, then Woodson and Roberts make the appeal that capital sentences also must be proportionate in an individual sense. Absolute proportionality, which the Woodson plurality made clear is a “separate deficiency” from comparative proportionality, requires capital sentences that are proportionate to the individual’s own culpability. While Gregg requires that capital sentencing be relatively proportionate, then, Woodson requires that they also be absolutely proportionate.

Determining whether a death sentence is absolutely proportionate can begin with the eighth amendment’s prohibition against cruel and unusual punishment. Since the definition of exactly what constitutes “cruel and unusual” is not fixed in time, but evolves with changing standards and moral beliefs, measure of contemporary standards of morality and decency must be employed. The Supreme Court has established that jury behavior plays a critical role in defining such contemporary standards, and that capital juries in particular “maintain a link between contemporary community values and the penal system – a link without which the determination of punishment could hardly reflect ‘the evolving standards of decency that mark the progress of a maturing society.'” A plurality of the Court in Gregg likewise emphasized that the “jury… is a significant and reliable objective index of contemporary values because it is so directly involved in [administering the death penalty].”

Just as appellate review has an important role to play in ensuring the consistency of capital sentences, it is also a central element in guaranteeing that they are proportionate to the individual’s own culpability, given the nature both of the offense and offender. Inasmuch as juries are, according to the Court, the voices of prevailing standards of morality, courts reviewing the absolute proportionality of a death sentence in a given case can examine whether such a sentence reflects societal moral sentiments. The Gregg plurality stressed the importance of using appellate review to examine the degree of correspondence between the moral sentiments of a community and the penalty imposed for a particular class of homicide: “If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a penalty of death.”

Thus, if juries have regularly imposed a sentence of death for a particular type of offense, its imposition in a specific case may not be disproportionate, either relatively or absolutely. When, however, juries generally fail to sentence defendants charged with particular crimes to death – that is, when a life sentence no longer represents the isolated granting of mercy but is the usual sentence for such offenses – the imposition of the death penalty in a similar case is arguably both relatively and absolutely disproportionate and therefore excessive. As Dix noted in his study of Florida, Georgia, and Texas, appellate review can be an effective method of determining whether a given sentence of death is morally appropriate or proportionate to a given case: “Such a review implicitly includes an evaluation of whether reasonable persons would regard the death sentence as disproportionate to the offender’s culpability, given the nature of the crime committed, the circumstances of its commission, and possible influences upon the defendant.

In its 1976 cases, then, the Supreme Court set forth two principles to which capital sentencing schemes are required to adhere in order to pass constitutional scrutiny. Gregg, Proffitt, and Jurek stand for the principle that capital sentencing must be uniform and consistent. Statutes that lacked guidelines for the imposition of the death penalty, as in Furman, were infirm because they produced inconsistent, arbitrary sentences. Woodson and Roberts require that death sentences be proportionate to the individual’s own culpability. Mandatory statutes which attempted to provide absolute uniformity were infirm because they failed to allow the jury to determine the appropriateness of the penalty for the unique case at hand.

Absolute and relative proportionality need not be mutually exclusive principles, as some have argued.32 Capital sentences can be both relatively and absolutely proportionate, and extensive appellate review of capital sentences can be an appropriate method for determining the extent to which these two principles of capital sentencing are being applied in any state scheme.

This Article examines death sentences in one southern state, South Carolina, during the period from 1979 to 1987, to determine whether they are comparatively excessive. Section I will present the methodology used in analyzing comparative sentence review. Section II then will apply three different methods of identifying comparatively excessive death sentences to South Carolina homicide data. Finally, Section III will analyze the form of proportionality review actually conducted by the South Carolina Supreme Court. A significant discrepancy between the results of the empirical search for comparatively excessive death sentences and the comparative death sentence review performed by the South Carolina Supreme Court is found. We conclude that both the theory and practice of comparative sentence review conducted by the South Carolina court are inadequate for identifying comparatively excessive death sentences.