The Need for a Mandatory Comparative Proportionality Review for Death Sentences in the Face of Shifting International Norms

Author:J. Brent Marshall
Position:Independent Scholar

Some nations and states have chosen to move towards disuse, or banning entirely, while other nations and states have doubled down on its use. The use of the death penalty as a nation places the United States as a rare outlier among developed, first-world countries. The definition of “cruel and unusual” punishment has been ever-changing and will continue to do so into the future as societal norms... (see full summary)

e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
© 2018 e Institute for Migrant Rights Press
thE nEEd for a Mandatory CoMparativE
proportionality rEviEw for dEath
sEntEnCEs in thE faCE of shifting
intErnational norMs
J. Brent Marshall
Independent Scholar
Some nations and states have chosen to move towards disuse, or banning entire-
ly, while other nations and states have doubled down on its use. e use of the
death penalty as a nation places the United States as a rare outlier among de-
veloped, rst-world countries. e denition of “cruel and unusual” punishment
has been ever-changing and will continue to do so into the future as societal
norms shi. Now is the time to evaluate once again whether the current death
penalty scheme continues to qualify as neither cruel nor unusual. It is a near im-
possibility that the death penalty will be abolished by the Court any time soon,
but that does not mean states cannot be required to ensure that death is sen-
tenced in a fair and proportional way by the states. Currently, the death penalty
is not applied in a race-neutral way for the perpetrator or the victim. Some states
already employ a review method to ensure this is not an issue, called a compara-
tive proportionality review, but this is not required of all states at this time. is
article addresses the rights of citizens to be free from cruel and unusual punish-
ment, and the failure of current capital punishment schemes in addressing that.
As international and domestic norms shi towards condemnation of the death
penalty, the only way to ensure that its use remains constitutional is to require
proportional application. is is not a solution that has been untouched by the
Court, stating in Pulley “there could be a capital sentencing system so lacking
in other checks on arbitrariness that it would not pass constitutional muster
without comparative proportionality review.” is article uses the statistics and
trends of capital punishment’s lack of proportionality to show why the current
system is so lacking that this type of review should be required going forward.
Keywords: Human Rights, Death Penalty, Abolitionism, Torture, International
V Indonesian Journal of International & Comparative Law 197-234 (April 2018)
e Eighth and Fourteenth Amendments mandate that punishments
cannot be either cruel, or unusual. e United States Constitution does
not dene exactly which punishments are “cruel”, or when a judgment
is “unusual”.1 is standard has been consistently dened in two ways:
rst, as non-static; and second, as one which changes over time, in ac-
cordance with the “evolving standards of decency that mark the prog-
ress of a maturing society.2 One of the factors the court has used when
evaluating “evolving standards of decency” is international norms.3 In
contemporary international society, the existence of, and the frequent
use of the death penalty – to the degree it is exercised in the U.S.—have
become “unusual, 4 if not unheard of punishments among states the
1. See U.S. Const. amend. VIII. See Also Harry F. Tepker, Tradition & the Abolition
of Capital Punishment for Juvenile Crime, 59 O. L. R. 809, 813-14 (2006)
(“In articles and public speeches, Justice Scalia argues against the idea of a
living, evolving constitution. . . . To Scalia, one either believes in law, including
a xed, written constitution, or believes in a fallacy - or something worse. He
urges interpretation based on . . . nothing but original meaning. Every part of
the Constitution is xed, immutable, and unchangeable except by amendment.
No one doubts, of course, that this methodology is correct for unambiguous
terms - age limits for public oce, length of terms, methods of electing presi-
dents (in most elections, anyway). But other provisions are dierent. e real
controversy focuses on the open-ended phrases, the clauses with ‘evolutionary
content.’ . . . e Cruel and Unusual Punishment Clause of the Eighth Amend-
ment is one such controversial clause; the words are ambiguous.”).
2. Tepker supra note 1, at 818 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)
(plurality opinion)). Trop marks the rst time “evolving standards of decency”
is used to evaluate cruel and unusual punishment, this opinion also “recog-
niz[es] in [this] case that the words of the Amendment are not precise, and that
their scope is not static.Id. at 100-01.
3. Coker v. Georgia, 433 U.S. 584, 622 n. 10 (1977) (acknowledging the Trop plu-
ralities’ approval of theses evolving standards of decency, and then applying
them in the current case—not substantively—but at least marking the exis-
tence of a shi, “It is thus not irrelevant here that out of 60 major nations in the
world surveyed in 1965, only 3 retained the death penalty for rape where death
did not ensue.”) (citing United Nations, Department of Economic and Social
Aairs, Capital Punishment 40, 86 (1968)).
4. e Death Penalty: An International Perspective, D P I. C., (last vis-
International Pressure to Require Proportionate Death Sentence Application
U.S. considers peers.5
e very existence of the death penalty constitutes unusual
punishment in contemporary society, but if its implementation is
destined to continue the best solution is to ensure the most stringent of
protections are in place to conrm every execution is free from Eighth
Amendment violation. is is not currently the case. e death penalty
continues to be inconsistent with not only international norms, but
also intrinsic ideals of fairness and enumerated policies of justice by
failing to implement these protections. e death penalty simply does
not aect every citizen equally or proportionally.6 All death sentences
ited Oct. 29, 2017).
5. U N D P (UNDP), H D-
 R  198 (2016),les/2016_
human_development_report.pdf; but UNDP, Human Development Reports:
Table 3 Inequality-adjusted Human Development Index,
en/composite/IHDI (last visited Oct. 29, 2017) (showing that while the Unit-
ed States is number 10 in the Human Development Index Rankings, the loss
of ranking when cross-referenced with the inequality adjusted HDI, shows a
percentage loss similar to those countries which execute at similar levels—and
a couple of outliers such as Japan and Israel—suggesting that the perception of
socio-economic and cultural “peers” may in fact be skewed).
6. McCleskey v. Kemp, 481 U.S. 279, 326 (1987) (Brennen J. Dissenting) (“even
examination of the sentencing system as a whole, factoring in those cases in
which the jury exercises little discretion, indicates the inuence of race on
capital sentencing. For the Georgia system as a whole, race accounts for a six
percentage [sic] point dierence in the rate at which capital punishment is im-
posed. Since death is imposed in 11% of all white-victim cases, the rate in
comparably aggravated black-victim cases is 5%. e rate of capital sentenc-
ing in a white-victim case is thus 120% greater than the rate in a black-victim
case. Put another way, over half—55%—of defendants in white-victim crimes
in Georgia would not have been sentenced to die if their victims had been
black. Of the more than 200 variables potentially relevant to a sentencing
decision, race of the victim is a powerful explanation for variation in death
sentence rates—as powerful as nonracial aggravating factors such as a pri-
or murder conviction or acting as the principal planner of the homicide.”);
Sherod axton, Disciplining Death: Assessing and Ameliorating Arbitrariness
in Capital Chargine, 49 A. S. L.J. 137, 183 (2017) (“When the race/eth-
nicity of the defendant or the victim has a direct impact on the probability of
a defendant being formally charged with the death penalty, then the system
produces racially/ethnically disproportionate outcomes.”). See John D. Bessler,
e Inequality of America’s Death Penalty: A Crossroads for Capital Punishment
At the Intersection of the Eighth and Fourteenth Amendments, 73 W.  L

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