Publication Date



Two lines of cases have dominated the Supreme Court's
Eighth Amendment death penalty jurisprudence: the
Furman-Gregg line of cases emphasizes the need to adopt
rules to eliminate the arbitrariness inherent in unguided
capital sentencing by juries, while the Woodson-Lockett
line of cases emphasizes the opposite concern-the need for
juries to make individualized sentencing determinations-
highlighting the inadequacy of rules.
At first glance, these competing aims create some
internal tension, if not outright conflict. In his
concurrence in Walton v. Arizona, Justice Scalia argued
that this conflict was - irreconcilable: "[t]he latter
requirement [of individualized factual determinations]
quite obviously destroys whatever rationality and
predictability the former requirement [of limitations on
jury discretion] was designed to achieve. . . ." And the
Court has done little to reconcile this conflict. Indeed,
recently in Kennedy v. Louisiana, Justice Kennedy stated,
"this case law ... is still in search of a unifying principle."
This Article attempts to provide just that-a unifying
principle-through the concept of 'proportionality." As
herein construed, proportionality requires that the
applicable punishment be commensurate with the crime in
both a relative and absolute sense. Using this principle,
the Article develops a framework by which to apply the
Court's Eighth Amendment jurisprudence, incorporating
both lines of cases in a way that alleviates the inherent
tension of pursing the competing goals of general
consistency and case-specific consideration.
This Article, then, argues that the Supreme Court ought
to apply the Eighth Amendment in capital cases solely in
terms of two distinct types of proportionality-absolute
and relative. Specifically, the model requires that the
state court (and jury) determine the issue of absolute
proportionality first, narrowing the individuals eligible for
the death penalty using case-specific mitigating facts. The state courts (typically through appellate review) must then

determine the issue of relative proportionality, further
narrowing the cases in which the offender is eligible to
receive capital punishment.
Part I of the Article describes the 'Walton problem"-the
apparent tension between the Furman-Gregg arbitrariness
principle and the Woodson-Lockett individualized
determination principle. In Part II, the Article defines the
concept of proportionality,describing both its absolute and
relative forms. In Part III, the Article articulates a new
model for implementing the Eighth Amendment that
solves the Walton problem. Finally, in Part IV, the Article
demonstrates how proportionality can serve as the
unifying principle for the Court's capital jurisprudence.