Prosecutorial Discretion and the Death Penalty’s Constitutionality

By Phuc Le

Irrespective of one’s beliefs about the fairness of sentencing convicted criminals to death, a high-profile case in which capital punishment is involved is also a sober time for reflection. To be sure, the constitutionality of the death penalty is not in doubt. The death penalty has long been held to be not per se unconstitutional by Supreme Court’s precedent and by historical evidence. The new wave of evidence, showing that wide prosecutorial discretion may lead to arbitrariness and disproportionality problems in the outcome of death penalty cases could very well result in the court subjecting capital punishment to constitutional review.

It is important to look at the traditional constitutional concerns regarding the death penalty. In Furman v. Georgia, the deeply divided Supreme Court filed a short holding and opinion and five separate concurrences detailing the constitutional concerns of the Justices. The majority essentially held that imposing the death penalty in Furman constituted cruel and unusual punishment. The Justices however, did not agree to the rationale. The concurring opinion of Justice Brennan and Marshall contended that the death penalty was unfit for civilization and hence per se unconstitutional.

In contrast, the controlling opinion by the other three Justices was more concerned with the arbitrariness of the imposition of the death penalty. More specifically, they argued that the seemingly racial element in the administration of the death penalty put the practice in violation of the Eight and Fourteenth Amendments. Since Furman, states have tried to deal with the arbitrariness concerns expressed in Furman by enacting a plethora of statutes. Some of these statutes have imposed mandatory death sentences for certain crimes, hence removing the arbitrariness of judges and jurors.

The “cruel and unusual punishment” framework was further clarified in Atkins v. Virginia and Roper v. Simmons. In Atkins, the Court held that persons who were mentally retarded could not be given death sentences. The court created another exempted class in Simmons, when it held that persons under the age of 18 could not receive the death penalty. These decisions signified the understanding of the Court that the administration of the death penalty has to be both fair and proportional.

Recent events, such as the grand jury’s decision not to indict the officer who killed Eric Garner, have brought the issue of prosecutorial discretion back into the spotlight. It is argued that the arbitrariness that the Furman Court sought to address at the sentencing phase has been replaced by arbitrariness at the prosecutorial phase. Some researchers indicate that the decision by the prosecutor whether to seek the death penalty is influenced by local laws and personal idiosyncrasies, and not necessarily solely racial prejudice. Despite efforts by courts and legislators to provide standards to guide the exercise of discretion, prosecution remains largely dominated by the executive branch both at state and federal levels. Unlike judicial opinions, these exercises of discretion are virtually unchecked and unreviewable. There is no appellate body reviewing whether a prosecutor’s decision to seek the death penalty was influenced by racial animus or other characteristics of the defendant that are unrelated to his guilt.

And there are plenty of evidence pointing toward racial elements playing a role in the death penalty process. For example, while black Americans make up of only 13% of the total population, they account for 41% of death row inmates. The Supreme Court has steadfastly refused to consider such demographic evidence as indicating the arbitrariness of the system. Granted, the fact that the death penalty system may be flawed is not conclusive evidence for its abolition. But it is certainly evidence for judicial and legislative oversight over the process. Looking back at the Furman decision, concerns like arbitrariness and disproportionality echoes the same theme: that is, similarly-situated defendants should be treated alike. This provides guidance as to how courts should guide executive discretion in seeking the death penalty for a defendant. Namely, perhaps prosecutors should be required to seek mandatory death penalty sentences for certain crimes. Or they can only accept a plea bargain that waive the death sentence if there are statutory mitigating circumstances .

Mandatory sentencing has a lot of human rights implications that need further examination. For instance a lot of human rights organizations have challenged the application of mandatory death sentencing as being inhumane.