Proportionality and Prosecutorial Discretion: Challenges to the Constitutionality of Georgia’s Death Penalty Laws and Procedures amidst the Deficiencies of the State’s Mandatory Appellate Review Structure

Kristen M. Nugent, King & Spalding

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Abstract

Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects the constitutional flaws inhering in Georgia’s current system of capital punishment, with a particular focus on the failures of the mandatory state Supreme Court proportionality review. The article thus begins with an assessment of Georgia’s capital sentencing scheme, arguing that the language of the relevant statutes renders the system susceptible to inequities among defendants and abuses of discretion by state officials. Notably, the state Supreme Court’s automatic review of all death sentences, instituted as a means of restraining overbroad judicial, juror, and prosecutorial application of vague statutory text, has failed to provide any meaningful check on the systemic arbitrariness and unfairness of death penalty decisionmaking. This point is elaborated in the second section of the article, which focuses on potential Eighth Amendment challenges to the practical application of Georgia’s death penalty laws, contending that to the extent that the Georgia Supreme Court persists in providing only a cursory rendition of its proportionality review obligation, the entire institution of capital punishment within the state is unconstitutionally cruel and unusual punishment. The third and final segment of the article explores an alternative but related set of challenges to Georgia’s death penalty procedures, demonstrating how the U.S. Supreme Court has failed to fully attend to the Fourteenth Amendment equal protection argument that Georgia’s death penalty statute, as applied, has fostered opportunities for impermissible considerations, including race-based biases (implicit or otherwise), to infiltrate the various stages of criminal proceedings, thus exposing capital defendants to a heightened risk that their sentence will be based on reasons irrelevant to their culpability. The article thus concludes that Georgia’s procedures neither shield death row defendants from arbitrary and disproportionate sentencing in violation of the Cruel and Unusual Punishment Clause, nor rectify the effects of institutionalized racism and individual prosecutorial biases in violation of the Equal Protection Clause.