Struck by Lightning: The Elevation of Procedural Form over Substantive Rationality in Capital Sentencing Proceedings


The death penalty is qualitatively different from any other punishment under our system of criminal justice. For this reason, the United States Supreme Court has held that certain safeguards are necessary to ensure that sentences of death comply with the requirement of the Eighth and Fourteenth Amendments that capital punishment not be meted out in an arbitrary and capricious manner. Among these safeguards are a legislative definition of the legally relevant factors that must be present before a sentence of death can be imposed and a sentencing structure that allows the capital sentencer to consider relevant facts about the defendant’s background and character and the circumstances surrounding his crime.

Capital punishment statutes must be structured to narrow the class of murder defendants who may be sentenced to death.’ This “narrowing” ensures that this qualitatively different punishment is imposed only upon those defendants who are most deserving of the harshest sanction possible and that legally irrelevant factors such as race and economic status are not used as bases for a sentence of death.

If a capital sentencing statute is written or applied too broadly, either in any of the particular statutory circumstances that make a defendant death eligible, or in the aggregate effect of all the statutory circumstances taken as a whole, it fails to meet the Eighth Amendment requirement of narrowing. If the statute, or any of its constituent parts, encompasses too many defendants, the sentencer possesses de facto unfettered discretion: she may pick and choose from too large a universe those who will be sentenced to death and those who will be sentenced to life imprisonment.

This Article examines the history of the Supreme Court’s modem death penalty jurisprudence and the reasons behind the limitations placed on capital sentencing proceedings. I argue that, while current capital punishment statutes technically conform to a procedural format held facially valid, they fail to meaningfully or substantively narrow the class of death eligible defendants. I further argue that the courts have effectively failed to inquire into the substantive narrowing performed by these statutes and have contented themselves with ensuring the presence of a mere procedural shell. As a result, these statutes create, and courts do little to safeguard against, a significant risk that improper factors will be considered in sentencing and that the death penalty will be imposed in an arbitrary and capricious manner.

Suggested Reading

Avi Frey∞ I. Introduction II. Mitigation A. Supreme Court Law B. Defense Practice III. Free Will vs. Determinism IV. Determinist Mitigation: The Substance Focus the Investigation Assess—and Reassess—Investigative Progress Utilize the Science of the Brain Supplement Voir Dire Frontload Determinist

Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption  B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation  III. Why

Capital punishment has been applied in North America virtually since the first European settlers arrived. It has been estimated that about 16,000 people have been legally executed in the United States and its colonial predecessors; an unknown additional number of