State Constitutions and Criminal Justice

By Barry Latzer | Go to book overview

established a three-part guideline for reviewing sentences. A court should consider first whether or not the harshness of the penalty is in proportion to the gravity of the offense. Second, it should compare penalties for other crimes within the same jurisdiction. Finally, sentences for the same crime in other jurisdictions should be examined.

This is another instance when the U.S. Supreme Court "caught up with" the states; i.e., some states were engaging in disproportionality analysis based on their own constitutions well before Solem made it an Eighth Amendment requisite. A few of these pre-Solem decisions rested on a subjective "shocks the conscience" test.47 Other decisions, influenced by Hart v. Coiner, a federal fourth circuit case, adopted a test substantially the same as Solem's.48 Still others provided independent analysis or no clear principles at all.49 But since Solem came down, the greater number of state supreme courts to rule on the issue have expressly incorporated that test into their organic laws.50 In short, Solem v. Helm or its functional equivalent now dominates, and there are really no significant state law extensions.


CONCLUSION

State constitutional law, with only a few exceptions, has provided little comfort to opponents of the execution of criminals. Not one state constitution is currently interpreted as inherently inconsistent with the death penalty, and three have been amended to expressly permit it.51 Nor have state provisions been construed as imposing procedural barriers to the imposition of the penalty over and above the federal Witherspoon rules. Although there have been problems in the administration of the death penalty--notably, long delays engendered by federal habeas corpus review--in the state constitutional law arena, Burger and Rehnquist have triumphed over Brennan and Marshall. In sum, this is another area of criminal law scarcely affected by the state court revolt.


NOTES
1.
U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."). Gregg v. Georgia, 428 U.S. 242 ( 1976).
2.
391 U.S. 510 ( 1968); cf. Boulden v. Holman, 394 U.S. 478 ( 1969) (barring excusal for fixed opinion against capital punishment); Bumper v. North Carolina, 391 U.S. 543 ( 1968) (barring Witherspoon claim when sentence is life in prison).
3.
448 U.S. 38 ( 1980) (mere refusal to take oath that death penalty would not affect deliberations no basis for exclusion).

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