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supreme court historical society yearbook: 1987
 



Justice Powell and the Eighth Amendment: The Vindication of Proportionality

GEORGE CLEMON FREEMAN, JR. [1]

One of the areas in which Justice Powell has had a major impact on current Supreme Court constitutional jurisprudence is the Eighth Amendment. That amendment provides that:

Excessive bail shall not be required, nor excessive fines imposed and cruel and unusual punishment inflicted.

Justice Powell's more important Eighth Amendment opinions fall into two categories – the capital punishment cases and the length of sentence cases. The capital punishment opinions include his joint opinion with Justices Stewart and Stevens in Gregg v. Georgia,[2] his later opinions for the Court in Eddings v. Oklahoma,[3] Booth v. Maryland,[4] and McCleskey v. Kemp[5] and his dissent in Burger v. Kemp.[6] The non-capital, length of sentences, cases are his dissent in Rummel v. Estelle[7] his opinion for the Court distinguishing Rum-me/three years later in Solem v. Helm.[8] In both lines of cases one of Justice Powell's principal contributions has been to help rescue and restore the concept of "proportionality" to its rightful place in enforcing the Eighth Amendment.

The "Death Penalty" Opinions

Gregg v. Georgia[9] is unusual in that the plurality opinion, announcing the judgment, was written jointly by three Justices: Stewart, Powell and Stevens. The case is one of the most important decisions involving capital punishment and the Eighth Amendment in the past quarter century It involved the validity of the statutory scheme for imposition of capital sentences that the Georgia legislature enacted in the wake of the Court's ruling in Furman v. Georgia,[10] which had held that Georgia's old system was unconstitutional. In Gregg, the Court upheld Georgia's new capital sentencing system but was divided in the basic reasons for the result.

The Court was split three ways. Justices Brennan and Marshall adhered to their view that what is "cruel and unusual punishment" evolves with the times and that under that criterion the death penalty can no longer be justified in any circumstances.[11] Justices Stewart, Powell and Stevens likewise viewed the concept as an evolving one, but they concluded that "the punishment of death does not invariably violate the Constitution."[12] They focused instead on the procedures by which capital punishment was imposed. While, in their view, the old Georgia system permitted unguided jurors to impose "the death sentence in a way that could only be called freakish,"[13] the new Georgia system provided significant guidance to the jury and the appellate review process added an additional safeguard against abuse.

The provision of appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.[14]

Justice White, Chief Justice Burger and Justice Rehnquist concurred in the judgment in a separate opinion that avoided any discussion of evolving social standards and placed principal emphasis on the role of the Georgia Supreme Court in appellate review.

Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish . . . that the Georgia Supreme Court failed properly to perform its task in this case or that it is incapable of performing its task adequately in all cases; and this Court should not assume that it did not do so.[15]

The joint opinion of Justices Stewart, Powell and Stevens is of interest not only because of the seminal quality of Gregg v. Georgia, but also for the insight it affords into Powell's subsequent Eighth Amendment opinions. In particular, the heavy reliance upon Weems, Trop and Robinson,[16] clearly foreshadowed Powell's subsequent insistence that the Eighth Amendment's requirements of proportionality apply to all sentences, those in non-capital as well as capital cases.[17]

In Eddings v. Oklahoma, Powell, writing for the Court, set aside a death sentence imposed upon a defendant who was only sixteen years old, emotionally disturbed and mentally retarded at the time he committed the murder. The Court did so because the sentencing judge "did not evaluate the evidence in mitigation and find it wanting as a matter of fact" but "rather he found that as a matter of law he was unable even to consider the evidence." [18] The Court reversed noting that "this sentence was imposed without 'the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases.' As in many of Powell's opinions in this field, the Court was closely divided. Four Justices, Chief Justice Burger and Justices White, Blackmun and Rehnquist, dissented.

In Eddings, Powell traced the recent history of the Court's evolving views on the constitutional parameters imposed on capital punishment:

As THE CHIEF JUSTICE explained, the rule in Lockett is the product of a considerable history reflecting the law's effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual . . .

Beginning with Furman, the Court has attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused.[20]

Turning to the facts, Powell wrote:

We find that the limitations placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett. Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.[21]

Powell again showed special solicitude for juvenile offenders in his dissent in Burger v. Kemp22 There he emphasized the special problems presented where the defendant sentenced to death was age 17 and obviously mentally retarded:

Imposing the death penalty on an individual who is not yet legally an adult is unusual and raises special concern. At least, where a State permits the execution of a minor, great care must be taken to ensure that the minor truly deserves to be treated as an adult. A specific inquiry including "age, actual maturity family environment, education, emotional and mental stability and... prior record" is particularly relevant when a minor's criminal culpability is at issue.[23]

In McCleskey v. Kemp Powell adhered to his belief that the appropriateness or inappropriateness of imposition of the death penalty should be objectively determined in light of facts directly related to the individual's character, conduct and the circumstances regarding his crime. In this case the jury found two aggravating circumstances justifying imposition of the death penalty and the defendant offered no mitigating evidence. The lower court, on the recommendation of the jury, imposed the death sentence. Subsequently, the defendant sought to have the sentence set aside in a petition for a writ of habeas corpus. His counsel presented a statistical study that purported "to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim, and to a lesser extent, the race of the defendant."[24] Speaking for himself, Chief Justice Rehnquist and Justices White, O'Connor and Scalia, Powell rejected arguments that imposition of the death penalty on McCleskey violated the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.

Several comments on this opinion are in order. From the perspective of the Court and its continuing deep division over the constitutionality of the death penalty under the cruel and unusual punishment clause of the Eighth Amendment, the opinion is yet one more precedent in the controlling line of decisions following in the wake of Furman v. Georgia and Gregg v. Georgia.[26] Thus, Powell's opinion reaffirmed for himself and four other justices that so long as Georgia in fact provides for procedures in the capital sentencing process that ensure the discretion unavoidably involved in sentencing is "controlled by clear and objective standards as to produce nondiscriminatory application,"[27] the system itself is constitutional. Powell summarized this requirement as follows:

In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational 'criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.[28]

Thus, Powell concluded that "[i]n light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." [29]

One of the more interesting parts of Powell's opinion in McCleskey is his treatment of the statistical study and its relationship to both the Eighth Amendment and Equal Protection arguments advanced by the defendant. Since the statistical study was used by the defendant as the basis for two alternative constitutional arguments, Powell chose to discuss the study's implications for each constitutional provision separately

Addressing the Eighth Amendment argument that the imposition of the death penalty on McCleskey "is disproportionate to the sentences in other murder cases," Powell said that "absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty."[30] The Court's earlier opinion in Gregg favored such an argument because it recognized that "opportunities for discretionary leniency" would produce disparate results in individual application. But Powell rejected that extension of Gregg. So long as the sentencing procedures "focus discretion 'on the particularized nature of the crime and the particularized characteristics of the individual defendant,' . . . we lawfully may presume that McCleskey's death sentence was not 'wantonly and freakishly imposed,' . . . and thus the sentence is not disproportionate within any recognized meaning under the Eighth Amendment."[31]

Having disposed of the facial attack on the Georgia statute, Powell then proceeded to deal with the defendant's argument that "the Georgia system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia." Powell recognized that the statistical study was relevant but, in his view, it was not constitutionally determinative for two reasons. The first was the inherent probative weakness of statistical evidence generally.

To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. . . . The question "is at what point that risk becomes constitutionally unacceptable," . . . McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do. . . . Where the discretion that is fundamental to our criminal process in involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital-sentencing process.[33]

Powell's second reason for rejecting the study was the lack of any limiting principle should such studies generally become criteria for finding constitutionally impermissible discrimination against minority groups.

In Boothe, writing for the Court, Powell set aside a Maryland statute that permitted evidence of the impact of a murder on the family of the victim to be presented to a jury determining whether or not imposition of the death penalty was appropriate. He wrote that

[o]ne can understand the grief and anger of the family caused by the brutal murders in this case, and there is no doubt that jurors generally are aware of these feelings. But the formal presentation of this information by the State can serve no other purpose than to inflame the jury and divert it from deciding the case [the sentence] on the relevant evidence concerning the crime and the defendant. As we have noted any decision to impose the death sentence must "be, and appear to be, based on reason rather than caprice or emotion The admission of these emotionally-charged opinions as to what conclusions the jury should draw from the evidence is clearly inconsistent with the reasoned decision-making we require in capital cases.[34]

The "Length of Sentences" Opinions

Powell's non-capital case "proportionality" opinions, his dissent in Rummel v. Estelle[35] and his opinion for the Court three years later in Solem v. Helm,[36] provide an example of how Powell ultimately persuaded a majority of his colleagues to come around to his view on a major constitutional issue. In this instance Justice Stewart, who concurred in Rummel, had left the Court and been replaced by Justice O'Connor who dissented in Solem. Thus the decisive vote in Solem came from Justice Blackmun who had been with the majority in Rummel but shifted to join Powell in Solem.

The issue in both Rummel and Solem was whether the Eighth Amendment imposes any limitations based on the. principle of proportionality on the length of sentences legislatures may establish for non-capital offenses. Powell's careful research into the English law roots of the amendment provided the answer. He went back to Magna Carta and its provisions on amercements to find the origins of the concept of proportionality and traced its descent through the English Bill of Rights of 1689 to the Virginia Declaration of Rights, which was the immediate source of the language in the Eighth Amendment..

In light of this history Powell could have rested his result on the concept of "original intent." But he chose to take a more expansive approach. Evoking the "living Constitution," [37] Powell tied the proportionality cases into the Furman v. Georgia [38] and Gregg v. Georgia[39] line of cases which had read limitations on death penalties into the Eighth Amendment to reflect changing social values. Powell stated in his Rummel dissent that "[t]he special relevance of Furman to his case lies in the general acceptance by Members of the Court of two basic principles. First, the Eighth Amendment prohibits grossly excessive punishment. Second, the scope of the Eighth Amendment is to be measured by ‘evolving standards of decency.’"[40]

In his Rummel dissent, Powell also rebutted the argument that the Court's review of the scope of permissible punishment set by state legislatures is counter to the principles of separation of powers and federalism. He cited a line of Fourth Circuit cases imposing proportionality constraints on sentences imposed under state law as "impressive empirical evidence that the federal courts are capable of applying the Eighth Amendment to disproportionate noncapital sentences with a high degree of sensitivity to principles of federalism and state autonomy."

Thus, once more we see the pragmatic Powell refusing to let abstract principles triumph over according justice to the individual standing before the Court:

The sentence imposed upon the petitioner would be viewed as grossly unjust to virtually every layman and lawyer. In my view, objective criteria clearly establish that a mandatory life sentence for defrauding persons of about $230 crosses any rationally drawn line separating punishment that lawfully may be imposed from that which is proscribed by the Eighth Amendment.[42]

In Solem, for his new found majority, Powell answered the arguments that applying federal scrutiny to sentences to see if they are consistent with the concept of proportionality will allow the courts virtually unfettered discretion and deluge the courts with a flood of new cases. He reached back to Weems v. United States[43] and the few subsequent cases in that line, such as Trop v. Dulles[44] and Robinson v. California,[45] and to the death penalty cases to find objective factors by which proportionality may be determined:

In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for the commission of the same crime in other jurisdictions.[46]

Powell emphasized that application of such standards by courts is practical. "Application of the factors that we identify also assumes that courts are able to compare different sentences. . . . Decisions of this kind, although troubling, are not unique to this area. The courts are constantly called upon to draw similar lines in a variety of contexts." [47] Powell then proceeded to apply the criteria to the facts before him and concluded:

Applying objective criteria, we find that Helm has received the penultimate sentence for relatively minor criminal conduct. He has been treated more harshly than other criminals in the State who have committed more serious crimes. He has been treated more harshly than he would have been in any other jurisdiction, with the possible exception of a single State. We conclude that his sentence is significantly disproportionate to his crime, and is therefore prohibited by the Eighth Amendment.[48]

A Final Observation

Justice Powell's contribution to current Eighth Amendment jurisprudence may have broader influence in the future in areas outside criminal sentencing. Commentators have already noted the relevance of the concept of proportionality to awards of punitive damages. 'Its applicability to such damages was one of the issues recently before the Court in Bankers Life and Casualty Company v. Crenshaw but the Court did not reach the issue.[50] The Supreme Court of Georgia did, however, and, relying heavily on Powell's amendments analysis in Solem, held that the excessive fines provision of the Eighth Amendment and its Georgia Constitution equivalent barred all excessive monetary penalties including excessive punitive damages.[51] The proportionality concept has also been held applicable by lower federal courts to forfeitures under civil RICO.[52] Thus, the concept of proportionality whether applied under the Eighth Amendment or under the broader concept of due process, may ultimately operate as an outer bound on the government's imposition of all civil penalties. Finally this concept may be relevant to the application of strict, joint and several liability under statutes like the Superfund Act,[53] where, on the facts of a particular case, the liability imposed is so disproportionate to the conduct or contribution of the particular defendant as to be punitive in effect.[54]

But whether or not these further extensions of the doctrine of proportionality are upheld by the court, Justice Powell has already made a major contribution by bringing new life the almost moribund Eighth Amendment. Looking back into history to ascertain the evils that the founding fathers and their English forebears sought to avoid, Powell has made its protections relevant to contemporary society.

Endnotes

1. B.A. Vanderbilt 1950, LL.B. Yale 1956. Mr. Freeman clerked for Mr. Justice Black in the 1956 Term, Justice Powell practiced law with the author from 1957 to 1971 in Richmond, Virginia. This article is based on one section of an article by this author on "Justice Powell's Constitutional Opinions" which will appear in the Fall 1988 issue of the Washington & Lee Law Review.
  1. 428 U.S. 153 (1956).
  2. 455 U.S. 104 (1982).
  3. 482 U.S. ___, 107 S. Ct. 107 S. Ct. 2529 (1987).
  4. 481 U.S. 107 S. Ct. 1756 (1987).
  5. 483 U.S. 107 S. Ct. 3114 (1987).
  6. 445 U.S. 263 (1980).
  7. 463 U.S. 277 (1983).
  8. 428 U.S. 153 (1976).
  9. 408 U.S. 238 (1972).
  10. 428 U.S. 153, 227 (1956) (Brennan, J., dissenting); 428 U.S. 153, 231 (Marshall J., dissenting)
  11. 428 U.S. at 169.
  12. Id. at 206.
  13. Id.
  14. Id. at 224
  15. See Id. at 171-1174 (Discussing Weems v. United States, 217 U.S. 349 (1910); Trop v. Dulles, 356 U.S. 86 (198) and Robinson v. California, 370 U.S. 660 (1962)). All these cases involved non-capital sentences or offenses.
  16. Justice Powell’s subsequent non-capital sentences opinions in Rummell v. Estelle, 445 U.S. 263, 285 (1980) (Powell J. dissenting) and in Solem v. Helm, 463 U.S. 277 (1983) are discussed below.
  17. 455 U.S. at 113 (emphasis in original).
  18. Id. at 104 (quoting Lockett v. Ohio, 438 U.S. 586, 606 (1978)).
  19. Id. at 110-11.
  20. Id. at 113, 114 (1980) (emphasis in original).
  21. 483 U.S. ___, 107 S. Ct. at 1763.
  22. Id. at 3140-41.
  23. 481 U.S. at ___, 107 S. Ct. at 1763.
  24. 408 U.S. 238 (1972).
  25. 428 U.S. 153 (1976).
  26. 481 U.S. at ___, 107 S. Ct. at 1772 (quoting Gregg v. Georgia, 428 U.S. 198 (1975)).
  27. Id. at 1774.
  28. Id.
  29. Id. (emphasis in original).
  30. Id. 1775.
  31. Id. (emphasis in original).
  32. Id. at 1775-78 (emphasis in original). Powell’s wariness of statistical studies is also evident in other contexts. See e.g., Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 778 ("Quite apart from the language of the statute, our cases makes clear that a mere statistical judgment will not suffice as a guarantee that state funds will not be used to finance religious education."). 787 ("Our cases, however, have long since foreclosed the notion that mere statistical assurances will suffice to sail between the Scylla and Charybdis of ‘effect’ and ‘entanglement’ [in Establishment Clause, First Amendment cases].")
  33. 482 U.S. at ___, 107 S. Ct. at 2536.
  34. 445 U.S. 263, 277 (1983).
  35. 463 U.S. 277 (1983).
  36. 445 U.S. at 307.
  37. 408 U.S. 238 (1972).
  38. 463 U.S. 277 (1983).
  39. 445 U.S. at 291-92.
  40. Id. at 306.
  41. 217 U.S. 307.
  42. 217 U.S. 349 (1910).
  43. 356 U.S. 660 (1962).
  44. 370 U.S. 660 (1962).
  45. 463 U.S. at 292.
  46. Id. at 303.
  47. Id. at 303.
  48. Jeffries, A Comment on the Constitutionality of Punitive Damages, 72 Va. L. Rev. 141; Massey, The Excessive Fines Clause and Punitive Damages: Some Lessons from History; 40 Vand. L. Rev. 1233 (1987).
  49. ___ U.S. ___, 56 U.S. L.W. 4418 (U.S. May 17, 1988) (No. 85-1765, delivered May 16, 1988).
  50. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 365 S.E.2d 827 (March 17, 1988).
  51. U.S. v. Busher, 817 F.2d 1409 (9th Cir. 1987); Hall v. City of Santa Barbara, 813 F.2d 198 (9th Cir. 1987).
  52. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C., § 9601 et seq.
  53. See Jeffries, supra, n. 48; Freeman, Inappropriate and Unconstitutional Retroactive Application of Superfund Liability, 42 Bus. Law. 215 (1986); Massey, supra, n. 48.


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