THE DEATH PENALTY IN GEORGIA AN AGGRAVATING CIRCUMSTANCE INTRODUCTION As a civilized people we have struggled with the difficult moral and legal issue of capital punishment since our Nations inceptio

THE DEATH PENALTY IN GEORGIA AN AGGRAVATING CIRCUMSTANCE INTRODUCTION As a civilized people we have struggled with the difficult moral and legal issue of capital punishment since our Nations inceptio - Description

Some favor the retention of the death penalty as the ultimate symbol of the moral acceptability of the entire criminal justice system 2 Others favor the abolition of the penalty as an admonition to the state to respect human life 3 The controversy s ID: 34883 Download Pdf

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THE DEATH PENALTY IN GEORGIA AN AGGRAVATING CIRCUMSTANCE INTRODUCTION As a civilized people we have struggled with the difficult moral and legal issue of capital punishment since our Nations inceptio

Some favor the retention of the death penalty as the ultimate symbol of the moral acceptability of the entire criminal justice system 2 Others favor the abolition of the penalty as an admonition to the state to respect human life 3 The controversy s

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THE DEATH PENALTY IN GEORGIA AN AGGRAVATING CIRCUMSTANCE INTRODUCTION As a civilized people we have struggled with the difficult moral and legal issue of capital punishment since our Nations inceptio




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THE DEATH PENALTY IN GEORGIA: AN AGGRAVATING CIRCUMSTANCE INTRODUCTION As a civilized people, we have struggled with the difficult moral and legal issue of capital punishment since our Nation's inception.' Some favor the retention of the death penalty as the ultimate symbol of the moral acceptability of the entire criminal justice system. 2 Others favor the abolition of the penalty as an admonition to the state to respect human life. 3 The controversy stems, in part, from the nature of the pen- alty-it is unique as a punishment in both its enormity and irrevocability. The

Constitution does not explicitly authorize capital punishment, al- though several amendments are premised on the existence of a death penalty. 5 In addition, early Supreme Court decisions implicitly upheld the punishment. 6 In recent years, however, the Court has failed to de- 1. Se Furman v. Georgia, 408 U.S. 238, 333-42 (1972) (Marshall, J., concurring) (discussing history of death penalty abolitionist movement in United States). 2. See Murchison, Toward A Perspective on the Death Penalty Cares, 27 EMORY L.J. 469, 554 (1978). 3. See id. 4. Furman v. Georgia, 408 U.S. 238, 306 (1972)

(Stewart, J., concurring); id. at 286-91 (Brennan, J., concurring). 5. The fifth and fourteenth amendments contain the words "capital" and "life" that argua- bly evince the Framers' belief in the vitality of the death penalty. The fifth amendment provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of

lif or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of ife, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. U.S. CONsT. amend. V (emphasis added). The fourteenth amendment provides, in part: All persons born or naturalized in the United States, and subject to the jurisidiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of lif, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protec- tion of the laws. U.S. CON ST. amend. XIV (emphasis added). Se Murchison, supra note 2, at 475-76. 6. McGautha v. California, 402 U.S. 183 (1971) (due process clause of fourteenth amend- ment does not require states to establish standards to guide jury discretion in capital cases); Wither-
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836 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 fine clearly the extent to which the imposition of the death

penalty is constitutional. 7 The Court has determined that although capital punish- ment per se is valid, 8 particular statutory schemes for imposing the pen- alty may be unconstitutional 9 under the eighth 0 and fourteenth amendments."I One of the most recent decisions on capital punishment is Godfre v. Georgia, 2 in which the Court examined the aggravating circumstance provision of the Georgia death penalty law: section b (7).13 That section provides that a defendant convicted of murder may be sentenced to death if the offense is found to be beyond a reasonable doubt, "outra- geously or

wantonly vile, horrible or inhuman in that it involved tor- ture, depravity of mind, or an aggravated battery to the victim."' 4 In Godfrq, the petitioner murdered his estranged wife and mother-in-law with a shotgun, killing them instantly.15 The Georgia courts convicted the petitioner of murder and sentenced him to death after finding the existence of an aggravating circumstance.16 A plurality of the United States Supreme Court reversed the petitioner's sentence, holding that the killings failed to meet the requirements of section b(7).17 The Court stopped short, however, of striking down

section b(7). A plurality of the Court found that the provision can be constitutionally applied.' 8 The spoon v. Illinois, 391 U.S. 510 (1968) (states cannot exclude persons opposed to death penalty from serving on juries in capital cases); Trop v. Dulles, 356 U.S. 86 (1958) (dicta) (death is not unconsti- tutional punishment); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (mechanical mal- function at scheduled execution did not preclude second attempt to execute death sentence); n re Kemmler, 136 U.S. 436 (1890) (electrocution upheld as permissible method of execution); Wilker-

son v. Utah, 99 U.S. 130 (1878) (firing squad upheld as permissible method of execution). 7. "[The Court] has. not cloven to a principled doctrine either holding the infliction of the death penalty to be unconstitutional per se or clearly and understandably stating the terms under which the Eighth and Fourteenth Amendments permit the death penalty to be imposed." Lockett v. Ohio, 438 U.S. 586, 629 (1978) (Rehnquist, J., dissenting). Accord, Gillers, Deciding Who Dies, 129 U. PA. L. R.v. 1, 8-9 (1980) (constitutional theories used to force changes in death pen- alty laws have changed);

Murchison, surra note 2, at 535 ("no seemless web of logic unites the Supreme Court's opinions on capital punishment."). 8. Gregg v. Georgia, 428 U.S. 153, 187 (1976) (plurality opinion). 9. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). 10. U.S. CONST. amend. VIII ("Excessive bail shall not be required, nor excessive fines im- posed, nor cruel and unusual punishments inflicted."). 11. The eighth amendment is applicable to the states through the fourteenth amendment. See, e.g., Robinson v. California, 370 U.S. 660, 666-67 (1962). 12. 446 U.S. 420 (1980) (plurality opinion). 13. GA. CODE

ANN. 27-2534.1(b)(7) (1978). 14. Id. 15. 446 U.S. 420 (1980) (plurality opinion). 16. Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979), reu'd sub nom. Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion). 17. Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion). Justices Stewart, Blackmun, Powell, and Stevens joined in the judgment of the Court, announced by Justice Stewart, reversing the sentence. Id. at 422-33. Justice Marshall concurred in a separate opinion, joined by Justice Brennan. Id. at 433-42. Chief Justice Burger dissented in a separate opinion. Id. at 442-44.

Justice White dissented in a separate opinion, joined by Justice Rehnquist. Id. at 444-57. 18. Justices Stewart, Blackmun, Powell, and Stevens joined in the judgment of the Court,
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GEORGIA DEATH PENALTY failure to constitutionally apply section b(7) in the petitioner's case was viewed as merely an aberrational lapse. This Note maintains that section b(7) should have been struck down because it neither has been nor can be constitutionally applied. Part I of this Note briefly examines the facts of the case. Part II traces the Court's recent decisions on capital punishment and

Georgia's response to those decisions. Both the Georgia legislative response in drafting new death penalty statute and the state court's decision to uphold that law are discussed. Part III examines the Court's rationale for upholding section b(7) of the Georgia death penalty statute as well as flaws in the Court's reasoning. Part IV reviews the Court's reasons for reversing the petitioner's sentence. Part V of this Note evaluates the impact of Godft'@ through a discussion of why section b(7) should have been declared un- constitutional, why the Court failed to do so, and what this failure

portends for future section b(7) cases. I. THE MURDERS The petitioner and his wife had violent altercations throughout their twenty-eight years of marriage. As a result of a heated argument in early September 1977, the petitioner's wife left him and later filed suit for divorce. 0 The petitioner made several attempts at reconciliation with his wife, but each time he was rebuffed. The petitioner believed that his mother-in-law was instigating his wife's continued rejection of him. On September 20, 1977, the petitioner and his wife argued heatedly over the telephone concerning the possibility of

reconciliation. Immedi- ately following a second argument, the petitioner went to the home of his mother-in-law, where his wife was staying, and shot his wife and mother-in-law in the presence of his daughter. Both victims died in- stantly. The petitioner promptly notified the police of his crime. The petitioner was indicted on two counts of murder and one count of aggravated assault 3 and convicted by a jury on all three counts. The announced by Justice Stewart, upholding the constitutionality of b(7). Id. at 429-33. Justice White agreed that b(7) was constitutional in a separate opinion,

joined by Justice Rehnquist. Id. at 452-57. Chief Justice Burger also expressed his agreement in a separate opinion. Id. at 443-44. Justice Marshall disagreed in a separate opinion, joined by Justice Brennan, arguing that b(7) was unconstitutional. Id. at 435-37. 19. Id. at 429-33 (plurality opinion). 20. Godfrey v. Georgia, 446 U.S. 420, 424 (1980) (plurality opinion). The petitioner's wife also obtained a warrant against the petitioner for aggravated assault. Id. 21. Id. at 424-25 (plurality opinion). 22. Id. The petitioner later told a police officer, "'I've done a hideous crime, .. but I

have been thinking about it for eight years. I'd do it again.'" Id. at 425-26 (plurality opinion). 23. After shooting his wife, the petitioner struck and injured his daughter with the barrel of 1981] 837
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838 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 same jury sentenced the petitioner to death, 4 finding that the aggravat- ing circumstance requirement of the Georgia death penalty law had been satisfied. 5 The jury specifically found "'that the offense of murder was outrageously or wantonly vile, horrible and inhuman.' "26 The Georgia Supreme Court affirmed the

petitioner's sentence. 7 It found that the jury did not inflict the sentence under any outside influ- ences; the sentence was not excessive compared to penalties imposed in similar cases; and, the finding of a section b (7) aggravating circumstance was supported by the evidence. 8 A plurality of the United States Supreme Court, however, reversed the petitioner's death sentence, find- ing that the facts of the case failed to satisfy the requirements of section b(7). 9 The Court, nevertheless, upheld the constitutionality of section b(7) of the Georgia death penalty statute based on its

application in other cases. II. THE CONSTITUTIONALITY OF THE DEATH PENALTY The cruel and unusual punishments clause of the eighth amendment evolved from the English Bill of Rights of 1689.31 Although the concept the shotgun. This act resulted in an indictment and conviction for aggravated assault. The peti- tioner pleaded not guilty by reason of insanity to all counts. Id. 24. Georgia has a bifurcated trial system under which the deciding authority, either a judge or a jury, first determines the defendant's guilt or innocence. Once there is a verdict, finding, or plea of guilty to a capital

crime, the deciding authority conducts a presentence hearing. e Gregg v. Georgia, 428 U.S. 153, 163 (1976) (plurality opinion). 25. GA. CODE ANN. 27-2534.1(b)(7) (1978). Under Georgia law, the sentencing authority may sentence a defendant convicted of murder to death if that sentencer finds at least one of ten statutory aggravating circumstances beyond a reasonable doubt. See id. 27-2534. 1(b)(l)-(10). 26. Godfrey v. Georgia, 446 U.S. 420, 426 (1980) (plurality opinion). The trial judge quoted the complete text of b(7) in his jury instructions. Id. 27. Godfrey v. State, 243 Ga. 302, 253

S.E.2d 710 (1979), rev'dsub nom. Godfrey v. Georgia, 446 U.S. 420 (1980) (plurality opinion). The petitioner argued on appeal that b(7) of the Georgia statute was unconstitutionally vague and that the jury's abbreviated finding of b(7) was an inade- quate statement of that statutory aggravating circumstance. The Georgia Supreme Court summa- rily dismissed the vagueness argument and concluded that the jury's enunciated finding was unobjectionable. Id. at 309-11, 253 S.E.2d at 717-18. 28. Id. 29. Godfrey v. Georgia, 446 U.S. 420, 432-33 (1980) (plurality opinion); id. at 433-35 (Mar- shall,

J., concurring) (death penalty is per se unconstitutional). Cf. id. at 442-43 (Burger, CJ., dissenting) (this murder was "hideous'); id. at 450 (White, J., dissenting) (petitioner "succeeded in creating a scene so macabre and revolting that, if anything, 'vile,' 'horrible,' and 'inhuman' are descriptively inadequate."). 30. Id. at 429-33 (plurality opinion); id. at 452-57 (White, J., concurring on specific issue of constitutionality of statute) ("the Georgia Supreme Court has responsibly and consistently per- formed its review function. "); id. at 443-44 (Burger, CJ., concurring on specific

issue of con- stitutionality of statute). Contra, id. at 435-37 (Marshall, J., dissenting on specific issue of constitutionality of statute) ("I am unwilling, however, to accept the plurality's characterization of the decision below as an aberrational lapse on the part of the Georgia Supreme Court from an ordinarily narrow construction of (b)(7)."). 31. See Furman v. Georgia, 408 U.S. 238, 317-19 (1972) (Marshall, J., concurring) (discussing development of cruel and unusual punishments clause). For a detailed discussion of the origin of the cruel and unusual punishments clause, see Granucci,

"Nor Crueland Unuma! tPuishments 1njt%&d'!- The Onr'inal Meaning, 57 CALIF. L. REv. 839 (1969).
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1981] GEORGIA DEATH PENALTY 839 of the clause is over four hundred years old, eighth amendment jurispru- dence developed slowly in this country 2 with little case law on the sub- ject for over one hundred and fifty years. 3 The vague and ambiguous terms of the clause, as well as the lack of clarity surrounding the the Framers' intent in including it in the Bill of Rights, 4 contributed to this dormancy. Not until the Court incorporated the eighth amendment into the fourteenth

amendment was the clause brought out of its dormancy. Criminal justice reformers argued that the clause limited state legisla- tures, as well as Congress, in imposing punishments and that capital punishment always amounted to "cruel and unusual punishment.1 These challenges caused a de facto abolition of the death penalty after 1967. 7 The necessity of a definitive Supreme Court ruling on capital punishment, however, became increasingly apparent. 8 Finally, in Furman v. Georgia, 9 the Supreme Court held invalid under the eighth and fourteenth amendments those death penalty statutes that

enabled sentencing decisions to be made "wantonly and freakishly." 32. See Furman v. Georgia, 408 U.S. 238, 315-28 (1972) (Marshall, J., concurring) (discussing development of eighth amendment jurisprudence). 33. The Court discussed the clause in the following cases: Trop v. Dulles, 356 U.S. 86 (1958); Louisiana rx rel. Francis v. Resweber, 329 U.S. 459 (1947); Badders v. United States, 240 U.S. 391 (1916); Weems v. United States, 217 U.S. 349 (1910); Howard v. Fleming, 191 U.S. 126 (1903); O'Neil v. Vermont, 144 U.S. 323 (1892); In re Kemmler, 136 U.S. 436 (1890); Wilkerson v. Utah, 99 U.S.

130 (1878); and Pervear v. Commonwealth, 72 U.S. (5 Wall.) 475 (1867). 34. See Furman v. Georgia, 408 U.S. 238, 319-22 (1972) (Marshall, J., concurring) (discussing Framers' intent). Only the specific purpose of prohibiting torture and other barbaric acts was obvious. Id. at 258 (Brennan, J., concurring). Because punishments that the Framers thought cruel in 1789, such as the rack, were abolished long ago, the Court saw no need to invoke the clause. Radin, TheJusprnedne ofDeath: Ealving Standardsfor the Ctel and Unusual Punirhments Clause, 126 U. PA. L. REv. 989, 997 (1978). 35. See note 11

supra. 36. The abolitionists relied primarily on Trop v. Dulles, 356 U.S. 86 (1958) (dicta) and Weems v. United States, 217 U.S. 349 (1910). See Murchison, supra note 2, at 477-79. 37. Se Murchison, supra note 2, at 480. This hiatus, however, was interrupted in 1977 by the execution of Gary Gilmore. Since 1977, three other executions have been carried out, the most recent being that of Steven Judy on March 9, 1981. Wash. Post, Mar. 9, 1981, at A3, col. 2. 38. Posby, The Death of Capital Pnishment? Furman v. Georgia, 1972 Sup. CT. REv. 1, (Furman v. Georgia decision was outcome of work by NAACP

Legal Defense and Educational Fund, academic lawyers, and numerous other attorneys across the country). 39. 408 U.S. 238 (1972) (per curiam). In Furman, the Court considered the following cases: Jackson v. State, 225 Ga. 790, 171 S.E.2d 501 (1969) (petitioner convicted of rape and sentenced to death); Furman v. State, 225 Ga. 253, 167 S.E.2d 628 (1969) (petitioner convicted of murder and sentenced to death); Branch v. State, 447 S.W.2d 932 ('ex. Crim. App. 1969) (petitioner convicted of rape and sentenced to death). 40. 408 U.S. 238, 239-40 (1972) (per curiam). The Court was split as to

whether Furman presented the general issue of the constitutionality of the death penalty. Justices Brennan and Marshall maintained that it did, holding that capital punishment is per se unconstitutional. Id. at 257 (Brennan, J., concurring); id. at 370 (Marshall, J., concurring). Chief Justice Burger and Jus- tices Blackmun, Powell, and Rehnquist found that capital punishment is per se constitutional. Id. at 379-80 (Burger, C.J., dissenting); id. at 407 (Blackmun, J., dissenting); id. at 416 (Powell, J., dissenting); id. at 467-68 (Rehnquist, J., dissenting). Justices Douglas, Stewart, and

White, mem- bers of the plurality, did not view the petitioner's case as reaching the question of the constitution-
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840 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 The lack of eighth amendment jurisprudence was a significant factor in Furman. ' The Court was unable to agree upon the demands of the cruel and unusual punishments clause. This resulted in a five-to-fourper curiam decision in which nine separate opinions were written. 2 Justice Douglas, in his plurality opinion, concluded that the death penalty was "cruel and unusual" when selectively applied to minorities and

outcasts of society. 3 Justice Brennan held that capital punishment per se vio- lates the eighth amendment.4 Furthermore, he shared Justice Stewart's view that the death penalty was arbitrarily applied, under the statutes at bar, because it was infrequently imposed 5 and because the basis for application often appeared to be race. 6 Justice White concluded that the death penalty failed to achieve any penal purpose when it was infre- quently and arbitrarily applied. 7 Justice Marshall reasoned that the cruel and unusual punishments clause "'must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.' "48 He found the death penalty invalid per se because it is mor- ally unacceptable to the American people 9 and because it furthers no ality of capital punishment. Id. at 240 (Douglas, J., concurring); id. at 306 (Stewart, J., concurring); id. at 311 (White, J., concurring). 41. The Court's lack of agreement on the scope of the eighth amendment may explain, in part, why the process of imposing the death penalty, rather than the death penalty itself, received the reprobation of the Court in Furman v. Georgia. Note, ConsRtitutional

Law--Georgia's Death Penallp Statute Upheld, 26 MERCER L. REv. 331, 332 (1974). 42. Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). 43. 408 U.S. 238, 245 (1972) (per curiam). Justice Douglas held that it was "'cruel and unu- sual' to apply the death pertalty--or any other penalty--selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular." Id. (Douglas, J., concurring). Al- though he acknowledged that there was insufficient evidence in the petitioners' case to conclude that they were sentenced to death because they were black, id. at 252-53,

Justice Douglas concluded that the pattern of discrimination, coupled with "untrammeled" jury discretion, was sufficient to find "these discretionary statutes unconstitutional in their operation." Id. at 256-57. 44. Justice Brennan viewed a punishment as "cruel and unusual" under the eighth amend- ment when it failed to comport with public opinion, was an affront to the concept of human dig- nity, was inherently cruel, or was disproportionate to the offense charged. Id. at 270-80 (Brennan, J., concurring). 45. Justice Brennan stated that "when a country of over 200 million people inflicts an

unusu- ally severe penalty no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied." Id. at 293 (Brennan, J., concurring). 46. Justice Stewart found that in the case at bar, the death penalty system had imposed "cruel" punishments in that the penalties were excessive. They also imposed "unusual" punish- ments in that the death penalty was too infrequently imposed. Id. at 309-10 (Stewart, J., concurring). 47. Justice White based his opinion primarily upon his personal experiences with federal and state criminal cases. He stated that

"the death penalty is exacted with great infrequency even for the most atrocious crimes and. there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." Id. at 313 (White, J., concurring). 48. Id. at 329 (Marshall, J., concurring) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Justice Marshall enunciated four ways in which a punishment is "cruel and unusual": (1) it in- volves so much physical pain and suffering that civilized society cannot tolerate it; (2) it is unusual because it was previously unknown as a penalty for a

given offense; (3) it is excessive because it serves no valid legislative purpose; and (4) it is invalid because popular sentiment abhors it. Id. at 330-32. 49. Id. at 360 (Marshall, J., concurring). Although Justice Marshall recognized that a major-
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1981] GEORGIA DEATH PENALTY legislative purpose. Furman indicated that arbitrariness in death penalty laws could be eliminated by restricting the discretion of the sentencing authority. The plurality opinion, however, did not explain how or to what extent this discretion should be restricted. 2 This omission, coupled with the

plurality's failure to agree on the demands of the cruel and unusual pun- ishments clause, had a far-reaching effect. 3 The Court in Furman struck down nearly all death penalty statutes in the United States, 4 but its lack of decisiveness and clarity left an intolerable void for the states to fill in enacting new death penalty laws. In response to the Furman requirement that restraints be placed on sentencing authority discretion, the Georgia legislature 6 redrafted its capital punishment law. 7 The new statute attempted to provide gui- dance to capital sentencing authorities 8 by requiring a

finding of one of ten statutory aggravating circumstances 9 before rendering a death sen- ity of the American people favor the death penalty, he believed that if people were better informed about the penalty, they would oppose it. He stated, "I cannot believe that in this stage in our history, the American people would ever knowingly support purposeless vengeance." Id. at 363. 50. Justice Marshall felt that the following legislative purposes might be served by the death penalty: retribution, deterrence, prevention of repetitive criminal acts, encouragement of guilty pleas and confessions,

eugenics, and economy. He concluded that in view of the limited fulfillment of these goals, the death penalty is excessive and unnecessary. Id. at 342-59 (Marshall, J., concurring). 51. Id. at 248 (Douglas, J., concurring); id. at 313 (White, J., concurring). But see Note, Dircre- lion and the Constitutionality of the New Death Penalty Statutes, 87 HARV. L. REv. 1690, 1712-14 (1974) (inconsistent results inherent in criminal system because prosecutors and pardoners also exercise discretion). 52. Note, supra note 51, at 1699. 53. The Chief Justice stated, "The collective impact of the

majority's ruling is to demand an undetennined measure of change from the various state legislatures and the Congress." Furman v. Georgia, 408 U.S. 238, 403 (1972) (Burger, CJ., dissenting) (emphasis added). See Comment, Evolu- tions of the Eighth Amendment and Standards for the Imposition of the Death Penalty, 28 DE PAUL L. REv. 351, 364 (1979); Note, supra note 51, at 1692. 54. All other then-existing discretionary death penalty statutes violated the eighth amend- ment because they shared the flaws of the statutes at bar. See Furman v. Georgia, 408 U.S. 238, 411 (1972) (Blackmun, J.,

dissenting); id. at 417 (Powell, J., dissenting); Dix, Appellate Review of the Deci- sion to Impose Death, 6 GEo. LJ. 97 (1979). 55. See note 53 supra. 56. Georgia structured its new death penalty statute after the MODEL PENAL CODE 210.6 (Proposed Official Draft 1962), noted in Gregg v. Georgia, 428 U.S. 153, 193-94 n.44 (1976). 57. The Georgia legislature retained the death penalty for six categories of crime: murder, GA. CODE ANN. 26-1101(c) (1977); kidnapping for ransom or where victim is harmed, id. 26- 1311(b); armed robbery, id. 26-1902(a); rape, id. 26-2001; treason, id.

26-2201; and aircraft hijacking, id. 26-3301. The United States Supreme Court subsequently struck down the death penalty for the crime of rape in Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion). For discussion of Coker v. Ceorgia, see notes 89-91 & accompanying text infra. 58. For a discussion of Georgia's bifurcated trial system, see note 24 supra. 59. The ten statutory aggravating circumstances include: the offense was committed while the offender was engaged in the commission of another capital felony, aggravated battery, burglary or arson; a great risk of death to more than one

person in a public place was knowingly created; the offense was performed for the purpose of receiving money or something of monetary value; the offense was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, deprav- ity of mind, or an aggravated battery" ( b(7)); the offender was an agent of another or caused
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842 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 tence. 0 The sentencing body, however, is not required to impose the death penalty if it finds a statutory aggravating circumstance. It can exercise discretion, for example, by sentencing a

defendant to life im- prisonment. ' In this manner, the discretion of the sentencing authority is narrowed, but not abolished. 2 A further check on this limited discre- tion is the provision in the law for immediate appeal in all capital cases. The following year, the Georgia Supreme Court upheld the new death penalty law in Coly v. State. 4 The state court interpreted Furman to require only that the death penalty not be applied arbitrarily and discriminatorily. 5 The Georgia law was viewed as meeting the de- mands of Furman because: (1) the death penalty is prescribed for only the most

outrageous crimes; 6 (2) there is automatic and swift appellate another to commit murder as his agent; the offender had a prior record of conviction for a capital felony; the offender had escaped from police custody or lawful confinement; and, the victim was judicial officer or district attorney, or a police or corrections employee or fireman performing his official duties. GA. CODE ANN. 27-2534.1(b)(1)-(10) (1978). 60. The sentencing authority must specify that it has found one of the statutory aggravating circumstances beyond a reasonable doubt. Id. 27-2534.1(c). In cases in which the

jury is the sentencing body, the trial judge is bound by the jury's recommended sentence. Id. 26-3102 (1977). 61. If the jury is the sentencing body, the trial judge must include in the sentencing instruc- tions to the jury an option to sentence a defendant to death or life imprisonment. Id. 27-2534.1(b) (1978). The sentencing authority should consider any mitigating circumstances or nonstatutory aggravating circumstances in deciding whether to sentence a convicted defendant to death or life imprisonment. Id. The sentencing authority, however, is not required to find any mitigating cir-

cumstances in order to recommend mercy. Id. 27-2302. The Georgia law does not define mitigat- ing circumstances. Id. 27-2503, 27-2534.1(b). 62. The sentencing body is permitted to exercise some discretion. Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974). 63. The trial court transmits to the Georgia Supreme Court a transcript and complete record of the trial, as well as a separate report by the trial judge, for use on review. GA. CODE ANN. 27- 2537(a) (1978). The Georgia court may either affirm the death sentence or remand the case for resentencing. Id. 27-2537(e)(I)-(2).

The appropriateness of the sentence is determined by consid- ering whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports a finding of a statutory aggravating circumstance; and whether the sentence is excessive or disproportionate to penalties imposed in similar cases. Id. 27-2537(c). 64. 231 Ga. 829, 204 S.E.2d 612 (1974). The defendant, a black escapee from a work gang, raped and abducted a housewife and later robbed a grocery store. He was convicted of rape and sentenced to death. He was also convicted of

two counts of armed robbery and one count of kid- napping, and sentenced to twenty years imprisonment for each count. Id. at 830, 204 S.E.2d at 613. The Georgia Supreme Court affirmed all convictions but set aside the death sentence on the ground that it was excessive and disproportionate to previous penalties imposed in similar cases. Id. at 835- 36, 204 S.E.2d at 616-17. Contra, id. at 837-39, 204 S.E.2d at 618-19 (Nichols, J., dissenting) (death sentence should be affirmed). 65. Id. at 832-33, 204 S.E.2d at 615. The Georgia court found that without clarification from the United States

Supreme Court, there was no sure answer to the question of "whether there is some constitutionally acceptable area in which the States may legislate between arbitrary imposi- tion on the one hand and mandatory imposition on the other." Id. Thus the court concluded that some sentencing authority discretion was permissible, as long as it did not result in an arbitrary application of the death penalty. But see Note, sufira note 51, at 1695-96 (suggests that test should be one of discretion rather than arbitrariness). 66. See note 57 su)ra.
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1981] GEORGIA DEATH PENALTY review of

death sentences; (3) there is comparative sentencing; and (4) the appellate court must insure that the trial court record does not indi- cate that arbitrariness or discrimination was the basis for imposing the death sentence. In addition to Georgia, thirty-four states reinstituted the death pen- alty between 1972 and 1976.68 This strong legislative reaction to Furman resulted in the Court's reconsideration of the death penalty issue in 1976.69 The Court delimited the bounds of constitutional imposition of capital punishment in Gregg v. Georgia 0 and its companion cases. 67. Coley v. State, 231

Ga. 829, 834, 204 S.E.2d 612, 616 (1974). Contra, id. at 839-41, 204 S.E.2d at 619-20 (Gunter, J., dissenting) (death penalty statute permits arbitrary and discretionary imposition of death penalty). 68. The following states enacted capital punishment laws: Alabama, Arizona, Arkansas, Cali- fornia, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vir- ginia, Washington, and

Wyoming. Gregg v. Georgia, 428 U.S. 153, 179-80 n.23 (1976) (plurality opinion). 69. See id. at 179-81 (plurality opinion) (discussing strong legislative reaction to Furman Georgia). 70. In Gregg v. Georgia, the petitioner and a traveling companion, while hitchhiking, robbed, shot, and killed two men who gave them a ride. The petitioner was charged with armed robbery and murder, and was convicted on all counts. The jury found two aggravating circumstances: the murder occurred during the commission of a separate capital offense ( b(2)) and the murder was committed for the purpose of receiving

money and other items of value ( b(4)). It sentenced the petitioner to death. Id. at 158-61. The Georgia Supreme Court affirmed the convictions and the death sentence in Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), afdsub nom. Gregg v. Geor- gia, 428 U.S. 153 (1976) (plurality opinion). 71. The companion cases to Gregg v. Georgia were Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v. Louisiana, 428 U.S. 325 (1976). In.qfftt v. Florida, the petitioner fatally stabbed the male victim with a

butcher knife and beat the victim's wife while burglarizing the couple's home. 428 U.S. at 244-45. The petitioner was convicted of murder and sentenced to death. Id. at 245-46. Florida law provides for an evidentiary hearing by the judge and jury following a conviction for a capital crime. During this hearing, consideration is given to both statutory aggravating and miti- gating circumstances. Following the hearing, the jury, by majority vote, reaches a verdict that is only advisory. The trial judge actually determines the sentence. If a death sentence is imposed, the trial court must make

written findings as to the basis for the sentence. There is appellate review of the death sentence. See FLA. STAT. 921.141 (Supp. 1976-77). InJurrk v. Texas, the petitioner choked, strangled, and drowned a ten-year-old female victim after kidnapping and raping her. 428 U.S. at 264-67. The petitioner was convicted of murder and sentenced to death. Id. at 267-68. The Texas Penal Code limits capital homicides to five situations. See TEX. PENAL CODE 19.03 (1974). The Texas capital sentencing procedures require a separate sentencing hearing after which the jury must answer three questions

before imposing the death penalty. If the answer to any question is negative, the jury may not inflict the death penalty. There is appellate review of all death sentences. See TEX. CODE CRIM. PROC. ANN. art. 37.071(b) (Supp. 1975-76). In Woodon v. North Carolina, the petitioner fatally shot the cashier of a convenience food store while robbing the store. 428 U.S. at 282-83. The petitioner was convicted of first-degree murder. Id. at 284. North Carolina law made death mandatory for all persons convicted of first-degree murder. See N.C. GEN. STAT. 14-17 (Cum. Supp. 1975). The petitioner,

therefore, was sentenced to death. 428 U.S. at 284. In Roers v. Louisiana, the petitioner fatally shot a gas station attendant, while robbing the sta- tion. 428 U.S. at 327-28. The petitioner was convicted of first-degree murder. Id. at 328. Louisi- ana law, like North Carolina law, made death mandatory for all persons convicted of murder. See
Page 10
844 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 The Court began its analysis of the capital punishment issue in Gregg by considering a question left unanswered four years earlier in Furman: Is the death penalty per se

unconstitutional for the crime of murder? 2 In Gregg, a plurality of the Court held that the cruel and unusual punish- ments clause of the eighth amendment required that penalties, in gen- eral, be in accord with contemporary values and with the "dignity of man." 3 The "dignity of man" concept mandated that a punishment not involve unnecessary or wanton infliction of pain, and not be grossly disproportionate to the severity of the crime. 4 The Court found that the death penalty was in accord with contemporary values because large proportion of American society continues to regard it as an

appro- priate and necessary sanction. 5 In addition, the death penalty was in accord with the concept of "human dignity" because it serves two social purposes, retribution and deterrence. 6 Capital punishment also is not disproportionate penalty for the crime of murder. 7 A plurality con- cluded, therefore, that the death penalty was per se valid for the crime of murder under the eighth amendment. The Court, however, did impose limits on the states' imposition of the penalty. The application of the death penalty may neither be mandatory nor left to standardless discretion. 9 The sentencing

body's LA. REV. STAT. ANN. 14:30 (1974). The petitioner, therefore, was sentenced to death. 428 U.S. at 328. 72. Gregg v. Georgia, 428 U.S. 153, 168-69 (1976) (plurality opinion). For a discussion of the individual Justices' positions on the constitutionality of the death penalty in Fuman v. Grorgia, see note 40 supra. 73. Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion). 74. Id. 75. Id. at 179-82 (plurality opinion). Contra, id. at 229-30 (Brennan, J., dissenting) (Court, rather than consensus of people, should determine whether death penalty is "morally tolerable"); id. at

232 (Marshall, J., dissenting) (if people were fully informed about penalty, which they are not, they would oppose punishment). 76. Id. at 183 (plurality opinion). 77. Id. at 187 (plurality opinion). The Court did not address the proportionality of the death penalty for the crimes of rape, kidnapping, or armed robbery. Id. at 187 n.35 (plurality opinion). 78. Justice Stewart stated, "We now hold that the punishment of death does not invariably violate the Constitution." Id. at 169 (plurality opinion). Accord, id. at 226 (White, J., concurring) (government is not "inevitably incompetent to

administer" death penalty). Contra, id. at 229-30 (Brennan, J., dissenting) (death penalty unconstitutional because degrading to human dignity); id. at 231-32 (Marshall, J., dissenting) (death penalty unconstitutional because excessive and morally unacceptable). For a discussion of Justices Brennan and Marshall's reasoning, see note 40 supra. Their views remained consistent on this issue in Furman v. Georgia and Gregg v. Georgia. 79. In Woodson v. North Carolika, the Court struck down the North Carolina mandatory death penalty law for first-degree murder because it: (1) departed from

contemporary standards of de- cency; (2) provided for unchecked jury discretion in that juries often refrain from convicting defendant if it is a mandatory capital offense; and (3) failed to provide for consideration of the individual defendant. 428 U.S. 280, 301-03 (1976) (plurality opinion). The plurality reserved judg- ment on the question of whether a mandatory death penalty statute limited to a narrow category of homicide, such as murder by a prisoner serving a life sentence, would be unconstitutional. Id. at 287 n.7 (plurality opinion). In Roberts v. Louisiana, the Court struck down the

Louisiana mandatory death penalty statute. The Court recognized that the Louisiana statute more narrowly defined the offense of first-degree
Page 11
1981] GEORGIA DEATH PENALTY discretion must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 0 The Court recom- mended that statutes provide for bifurcated trial procedures and enu- merate aggravating circumstances so that the attention of the jury is focused on the individual defendant and his crime. ' Appellate review of all death sentences was also a useful safeguard against jury

discretion. Because the Georgia death penalty law provided for a bifurcated trial procedure, aggravating circumstances, and immediate appellate review, the Court upheld the statute in Gregg. 3 A plurality concluded that the Georgia law had "clear and objective standards so as to produce non- discriminatory application. 4 In validating the Georgia statute, the Court in Gregg also examined the language of the aggravating circum- stance provision. 5 The Court recognized that any murder could poten- tially satisfy a broad construction of section b(7), permitting the arbitrary application of the

death penalty. 6 The Court, however, was unwilling to assume that Georgia would adopt an open-ended construc- murder than did the North Carolina law. The Louisiana statute still failed, however, because it contained the infirmities of the North Carolina law. 428 U.S. 325, 332-36 (1976) (plurality opinion). 80. Gregg v. Georgia, 428 U.S. 153, 189 (1979) (plurality opinion). 81. In Gregg v. Georgia, the Court noted the special problems of jury sentencing. First, infor- mation relevant to a sentencing decision, such as a prior criminal record, may have no relevance to the question of guilt and

may even be prejudicial. Second, the information may not be properly used by a jury because a jury has no experience in sentencing. The Court recommended a bifur- cated trial system to alleviate the first concern and enumeration of statutory aggravating circum- stances to obviate the second concern. Id. at 190-93 (plurality opinion). 82. d. at 195 (plurality opinion). 83. Id. at 197-98 (plurality opinion). The Florida and Texas death penalty statutes were also upheld in Proffitt v. Florida, 428 U.S. 242, 251 (1976) and Jurek v. Texas, 428 U.S. 262, 276-77 (1976). The Florida and Texas laws

differed from the Georgia statute. For example, under Florida law the trial judge makes the final determination of the sentence; under Georgia law, however, the jury makes the decision when it is the sentencing body. The Court, however, found that jury sen- tencing is not constitutionally required. Proffitt v. Florida, 428 U.S. at 252. The Texas statute provided a narrowed definition of a capital murder, a separate sentencing hearing, and prompt appellate review. The Court upheld that law based on those provisions. Jurek v. Texas, 428 U.S. at 276-77. Although Georgia law enumerated specific

aggravating circum- stances, Texas did not. The Court, however, held that the narrow definition of capital murders in Texas served the same purpose as a listing of statutory aggravating circumstances. Id. at 270. 84. Gregg v. Georgia, 428 U.S. 153, 197-98 (1976) (plurality opinion) (quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974)). 85. GA. CODE ANN. 27-2534.1(b)(7) (1978). 86. Gregg v. Georgia, 428 U.S. 153, 201 (1976) (plurality opinion). Justice Stewart, writing for the plurality, stated, "It is, of course, arguable that any murder involves depravity of mind or an

aggravated battery." Id. At the time Gregg was decided, there had been only two cases based on b(7): McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), cert. denied, 428 U.S. 910 (1976), and House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), cer. denied, 428 U.S. 910 (1976). Both involved hideous murders that fell well within the parameters of the section. In AcfCorquodale, the defendant mutilated and raped a 17-year-old female victim, prior to strangling her to death. 233 Ga. at 370-71, 211 S.E.2d at 579-80. In House, the defendant committed anal sodomy on two seven-year-old boys,

prior to choking them to death. 232 Ga. at 140-41, 205 S.E.2d at 218-19.
Page 12
846 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 tion of section b(7) and, for this reason, upheld the section. Between 1976 and 1980, the Court further outlined the demands of the cruel and unusual punishments clause for the application of the death penalty. 8 In 1977, the Court held in Coker v. Georgia 9 that the penalty of death was impermissibly severe for the crime of rape when the victim is an adult woman. 0 Capital punishment for the offense of rape was contrary to contemporary standards of

decency and dispropor- tionately severe because rapists do not take human lives. 1 The follow- ing year, in Lockelt v. Ohio ,92 the Court restricted the manner in which states can impose the death penalty by requiring that all mitigating evi- dence be considered in capital cases. Those prescribing the sentence must be able to evaluate any aspect of the convicted defendant's record or character and any circumstances of the offense. 3 This ensures that 87. Gregg v. Georgia, 428 U.S. 153, 201 (1979) (plurality opinion). The Court's grant of certiorari was limited in Gregg. Section b(7) was

reviewed against vagueness and overbreadth stan- dards solely to determine whether a Georgia court could impose the death penalty under the sec- tion, arbitrarily and capriciously, in contravention of the eighth and fourteenth amendments. Id. at 201 n.51 (plurality opinion). 88. See, e.g., Green v. Georgia, 442 U.S. 95 (1979); Presnell v. Georgia, 439 U.S. 14 (1978); Jordan v. Arizona, 438 U.S. 911 (1978); Woods v. Ohio, 438 U.S. 910 (1978); Roberts v. Ohio, 438 U.S. 910 (1978); Downs v. Ohio, 438 U.S. 909 (1978); Shelton v. Ohio, 438 U.S. 909 (1978); Bell v. Ohio, 438 U.S. 637 (1978); Lockett

v. Ohio, 438 U.S. 586 (1978) (plurality opinion); Coker v. Georgia, 433 U.S. 584 (1977); Eberheart v. Georgia, 433 U.S. 917 (1977); Hooks v. Georgia, 433 U.S. 917 (1977); Gardner v. Florida, 430 U.S. 349 (1977); Davis v. Georgia, 429 U.S. 122 (1976), dted in Godfrey v. Georgia, 446 U.S. 420, 438 n.5 (1980) (Marshall, J., concurring). 89. Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). The defendant escaped from a correctional institution where he was serving various sentences for murder, rape, kidnapping and aggravated assault. After breaking into a couple's home, he raped the

wife and tied up the husband. The defendant then stole the couple's car and kidnapped the wife. Id. at 587 (plurality opinion). He was charged with escape, armed robbery, motor vehicle theft, kidnapping, and rape. Upon his conviction he was sentenced to death. Id. at 587-91 (plurality opinion). 90. Id. at 592 (plurality opinion). 91. Id. at 595-98 (plurality opinion). The plurality noted that Georgia was the sole jurisdic- tion that authorized a sentence of death when the rape victim is an adult woman. In addition, Georgia juries had sentenced rapists to death only six times since 1973, when

the law was enacted. These facts indicated that capital punishment for the crime of rape was contrary to contemporary standards of decency. Id. at 595-97 (plurality opinion). The plurality also found that the death penalty was disproportionate to the offense of rape. The Court stated, "We have the abiding con- viction that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life." Id. at 598 (plurality opinion) (quot- ing in part Gregg v. Georgia, 428 U.S. 153, 187 (1976)). 92. Lockett v. Ohio, 438 U.S.

586, 604 (1978) (plurality opinion). The petitioner and three others robbed a pawnshop and fatally shot the pawnbroker. Although the petitioner helped to plan the robbery and to protect the others involved, she was not present when the pawnbroker was killed. The individual who actually shot the pawnbroker pleaded guilty and later testified against the petitioner. The petitioner was convicted of aggravated murder, which was punishable by death. Id. at 589 (plurality opinion). 93. The plurality concluded: that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest

kind of capital cases, not be precluded from considering, as a mitigatingfactor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Id. at 604 (plurality opinion) (emphasis in original). The Ohio law on mitigating circumstances had precluded the sentencer from considering the following facts: the petitioner was a twenty-one-year-
Page 13
1981] GEORGIA DEATH PENALTY the death penalty is not arbitrarily inflicted, 4 as prohibited by Furman. III. A CONSTITUTIONAL CONSTRUCTION

OF SECTION B(7) The Supreme Court in Godfrey v. Georgia 5 examined whether the Georgia Supreme Court was adopting such a broad and vague construc- tion of section b(7) 6 in violation of the eighth and fourteenth amend- ments. 7 The plurality in Godfrey held that the Georgia Supreme Court, by developing criteria for applying section b(7), had precluded the possi- bility of arbitrary infliction of the death penalty. 8 Section b(7) was, therefore, valid under the eighth amendment. In Godfrey, the Court found that Georgia, heeding its admonition in Gregg v. Georgia that section b(7) be construed

narrowly, 9 had estab- lished standards for imposing section b(7) in Blake v. State 100 and Hars v. State.""1 In Harris, the court emphasized both that it would not permit the language of section b(7) to become a "catch all" provision for mur- der cases that do not fall within any of the other nine statutory aggra- vating circumstances, 2 and that it would restrict approval of death sentences to those cases that lie "at the core" of section b(7).103 The plurality, in Godfrey, found that the Georgia court in Blake and Harris made several conclusions regarding the application of section b(7):104

(1) for an offense to be "outrageously or wantonly vile, horrible or inhu- man," the evidence would have to demonstrate "torture," "depravity of mind," or an "aggravated battery" to the victim; 5 (2) "depravity of old with low or average intelligence who had committed no major offense in the past. The statute was therefore unconstitutional. Id. at 608 (plurality opinion). 94. Id. 95. 446 U.S. 420 (1980) (plurality opinion). 96. GA. CODE ANN. 27-2534.1(b)(7) (1978). 97. 446 U.S. 420, 423 (1980) (plurality opinion). 98. 446 U.S. 420, 429-33 (1980) (plurality opinion). For the Justices' various

positions on the issue, see note 18 sutra. 99. Se notes 86-87 & accompanying text supra. 100. 239 Ga. 292, 236 S.E.2d 637, cer. denied, 434 U.S. 960 (1977). In Blake, the defendant threw the two-year-old female victim over the side of a bridge into a river below after arguing with the victim's mother, who was also the defendant's girlfriend. Id. at 293-94, 236 S.E.2d at 639-40. The defendant was convicted of murder and sentenced to death based on the finding of a b(7) aggravating circumstance. The conviction and sentence were affirmed by the Georgia Supreme Court. Id. at 299-301, 236 S.E.2d

at 643-44. 101. 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933 (1977), modifed, 243 Ga. 244, 253 S.E.2d 707 (1979). In Hanir, the defendant shot and killed his female victim in the parking lot of a shopping mall. The defendant told the police that he did not know why he killed the woman, but that it "'was something. [he] always wanted to do.' "Id. at 718-20, 230 S.E.2d at 3-4. The defendant was convicted of murder and sentenced to death based on the finding of a b(7) aggra- vating circumstance. The conviction and sentence were affirmed by the Georgia Supreme Court. Id. at 718,

230 S.E.2d at 1. 102. Harris v. State, 237 Ga. 718, 732, 230 S.E.2d 1, 10 (1976). 103. Id. at 732-33, 230 S.E.2d at 10-11. 104. See Godfrey v. Georgia, 446 U.S. 420, 431 (1980) (plurality opinion). 105. Id. According to the Georgia court, the b(7) language of "outrageously or wantonly
Page 14
848 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 mind" comprehends only the kind of mental state that led the murderer to torture or to commit an aggravated battery; 6 and (3) to constitute "torture," there must be evidence of serious physical abuse.' 7 These criteria have been met in other

cases in which the trial courts have relied on section b(7). 8 The Georgia Supreme Court has rejected all consti- tutional challenges to its construction of section b(7) since Blake and Harris.' Section b(7) is unquestionably vague. The plurality in Godfre recog- nized that any reasonable juror, absent limiting instructions, "could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman'" and thereby meet the requirements of sec- tion b(7)." 0 Although the statute requires that the act involve "torture, depravity of mind or an aggravated battery. ,""'

the trial judge is not obligated to define these terms." Instead of requiring more specific jury instruction to reduce the arbi- trary imposition of the death penalty in section b(7) cases, the plurality in Godfrey apparently concluded that the power of the Georgia Supreme Court to review constitutes an adequate safeguard against arbitrary im- position of the death penalty, provided that the court adheres to the guidelines enunciated in Blake and Harns. 11 3 Justice Marshall rejected this premise, stating that "it is not enough for a reviewing court to apply a narrowing construction to

otherwise ambiguous statutory language. The jury must be instructed on the proper, narrow construction of the vile, horrible or inhuman" involved both the effect on the victim (i.e., torture or aggravated bat- tery) and on the offender (i.e., depravity of mind). Harris v. State, 237 Ga. 718, 732-33, 230 S.E.2d 1, 10-11 (1976). 106. Godfrey v. Georgia, 446 U.S. 420, 431 (1980) (plurality opinion). In Blake, the court de- fined "depravity of mind" as "that which results in torture or aggravated battery to the victim." Blake v. State, 239 Ga. 292, 299, 236 S.E.2d 637, 643 (1977). 107. Godfrey v.

Georgia, 446 U.S. 420, 431 (1980) (plurality opinion) (" '[T]orture'... must be construed inpad matea with 'aggravated battery' so as to require evidence of serious physical abuse of the victim before death."). This conclusion was taken from a reading of Blake alone. Id. 108. See Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977) (death sentence upheld where defendant beat and buried live victim), cert. denied, 436 U.S. 914 (1978); Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977) (death sentence upheld where defendant beat and buried live victim), cert. denied, 439 U.S. 882 (1978); Dix v.

State, 238 Ga. 209, 232 S.E.2d 47 (1977) (death sentence upheld where defendant beat, strangled, and cut victim prior to killing victim), cer. denied, 445 U.S. 946 (1980); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (death sentence upheld where defendant tortured victim prior to killing victim and victim's spouse), cert. denied, 429 U.S. 1029 (1976); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (death sentence upheld where defendant tortured and raped victim prior to killing victim by strangulation), cerL denied, 428 U.S. 910 (1974), dited with approval in Godfrey v. Georgia, 446 U.S.

420, 432 n.14 (1980) (plurality opinion). 109. Godfrey v. Georgia, 446 U.S. 420, 431 n. 11 (1980) (plurality opinion). 110. Syeeid. 111. See text accompanying note 14 supra. 112. In Gadftey, for example, the trial judge simply quoted the words of b(7). See note 26 accompanying text supra," note 139 & accompanying text infra. 113. See notes 102-08 & accompanying text supra.
Page 15
GEORGIA DEATH PENALTY statute."" 4 It is Justice Marshall's position that the ambiguous lan- guage of section b(7) must be given meaning at the sentencing stage when it first is applied. The validity of

Justice Marshall's view is borne out by further exami- nation of Georgia's sentencing procedures. Under Georgia law, once defendant is convicted of a capital crime, the sentencing authority deter- mines whether the crime falls within any of the ten statutory aggravat- ing circumstances." 6 Unless the sentencing body so finds, it may not render a death sentence." 7 If the statutory definition of an aggravating circumstance is vague, as in section b(7), and no explanatory instruc- tions are proffered, the jury will have unbridled discretion to construe that language as it wishes to find the

aggravating circumstance and to impose the death sentence." 8 This kind of sentencing discretion is likely to result in the arbitrary imposition of the death penalty" 9 that, accord- ing to the Court in Furman v. Georgia, violates the eighth and fourteenth amendments. 0 The plurality in Godfrey v. Georgia,' 1 however, by rely- ing on the Georgia Supreme Court to cure any sentencing errors, failed to consider the strong possibility of an unconstitutional applica- tion of section b(7) at the sentencing stage.' A reviewing court, under the current Georgia law, cannot provide totally effective

safeguard against an abuse of discretion by a sentencing authority. 4 If a jury fails or refuses to find an aggravating circum- stance, there is no review.' 5 In addition, there is no review even if, in spite of a finding of an aggravating circumstance, the sentencing body elects to render a life imprisonment sentence instead of the death pen- alty.' 6 The Georgia Supreme Court, therefore, is precluded from com- paring two cases in which individuals are convicted of capital crimes 114. Godfrey v. Georgia, 446 U.S. 420, 436-37 (1980) (Marshall, J., concurring in judgment). 115. Id. 116. GA.

CODE ANN. 27-2534.1(b) (1978). For a list of the ten statutory aggravating circum- stances prescribed by Georgia law, see note 59 supra. 117. GA. CODE ANN. 27-2534.1(c) (1978). 118. C. BLACK, CAPITAL PUNISHMENT: THE INEVITABILITY OF CAPRICE AND MISTAKE 65 (1974) ("what Georgia has done is to lay down a smokescreen of plenteous words, which. mask the fact that exactly the same old unbridled jury discretion is there. .. 2). 119. Id. at 68 (mistake likely with application of vague statutory language); Browning, The New Death Ptnaly Statutes: Perpetuating a Costly Mth, 9 GONZ. L. REv. 651, 702

(1974) (vague statutory terms are more susceptible to discriminatory application than other items in death penalty laws). 120. 408 U.S. 238 (1972) (per curiam). 121. 446 U.S. 420, 422-23 (1980) (plurality opinion). The plurality limited its consideration of sentencing instructions to the petitioner's case. Id. at 428-29. 122. See Godfrey v. Georgia, 446 U.S. 420, 429 (1980) (plurality opinion). 123. See Note, sufira note 41, at 335 (possibility of arbitrariness remains at trial level in sentenc- ing stage). 124. See id. at 335 (no visible elimination of arbitrariness through appellate

process). 125. See GA. CODE ANN. 27-2534.1(b) (1978). 126. Id. 1981]
Page 16
850 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 and one individual is sentenced to life imprisonment and the other to death.' 7 It is likely that defendants will receive disproportionate sentences, yet the reviewing court will be unable to correct the situa- tion.' 8 The danger is intensified in section b(7) cases where the risk of disproportionate sentences is manifest due to the vague terms of the statute. 129 Moreover, when the Georgia Supreme Court has had the opportunity to review a decision by

the sentencing authority to impose capital pun- ishment, the court shows antipathy' 0 Georgia law provides that in those cases in which the death penalty has been imposed, the Georgia Supreme Court must determine whether the evidence supports a finding of a statutory aggravating circumstance.' 1 The Georgia Supreme Court, however, often dismisses its obligation with a cursory statement indicating that the evidence supports the finding.132 Review of the evi- dence has been delegated traditionally to the trial courts, which may explain the court's perfunctory performance.' 3 Nevertheless, this

per- formance by the Georgia Supreme Court weakens the plurality's posi- tion in Godfrey that appellate review provides an adequate safeguard against unbridled sentencing discretion. Not only has the Georgia Supreme Court demonstrated indifference towards its vital review function in capital cases, it also has been erratic in effectuating that safeguard when a section b(7) aggravating circum- stance has been found. 4 The plurality in adfrey concluded that Blake and Harris, and their progeny, provided evidence that the Georgia Supreme Court has applied section b(7) in a satisfactorily narrow

man- ner. 5 Justice Marshall disagreed with this general statement, arguing 127. See Woodson v. North Carolina, 428 U.S. 280, 318-19 (1976) (Rehnquist, J., dissenting) ("Appellate review affords no correction whatever with respect to those fortunate few who are the beneficiaries of random discretion exercised by juries."); Coley v. State, 231 Ga. 829, 841, 204 S.E.2d 612, 620 (1974) (Gunter, J., dissenting in part) (sentencing authority may decline to impose death penalty by "nebulous measurement"); Note, supra note 51, at 1703 (confidence in appellate review unwarranted because no review when

death penalty is not imposed). 128. See Woodson v. North Carolina, 428 U.S. 280, 317-18 (1976) (Rehnquist, J., dissenting) (Georgia juries still have discretion to recommend mercy and reviewing court cannot know whether it is mercy with or without presence of aggravating circumstance). 129. See notes 118-19 & accompanying text .upra. 130. See, e.g., Morgan v. State, 241 Ga. 485, 246 S.E.2d 198 (1978), cert. denied, 441 U.S. 967 (1979); Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977), cert. denied, 436 U.S. 914 (1978); Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029

(1976); Hooks v. State, 233 Ga. 149, 210 S.E.2d 668 (1974), vacated, 433 U.S. 917 (1977). 131. GA. CODE ANN. 27-2537(c)(2) (1978). 132. See cases cited in note 130 supra. 133. -Dix, .rsupra note 54, at 160-61 (appellate judges reluctant to interject themselves into area traditionally left to almost total discretion of trial courts). 134. See Godfrey v. Georgia, 446 U.S. 420, 435-36 (1980) (Marshall, J., concurring in judg- ment). Accord, Dix, supra note 54, at 123 (Georgia Court has not developed "a useful framework for scrutinizing individual sentences"). 135. Justice White agreed with the

plurality in ,od5f" that the Georgia Supreme Court has
Page 17
1981] GEORGIA DEATH PENALTY that the Georgia court, since 1977, has affirmed death sentences in sev- eral shooting murders involving no "torture" or "aggravated battery," and clearly not meeting the section b(7) criteria of Blake and Harris. IV. THE UNCONSTITUTIONAL IMPOSITION OF CAPITAL PUNISHMENT IN GODFREY v GEORGIA The Godfrq plurality found that the Georgia Supreme Court had con- ducted a satisfactory review in prior section b(7) cases. Next, it consid- ered whether the Georgia court had done so in that case. 7 The

plurality held that the Georgia court had not, and reversed the court's judgment insofar as it left standing the petitioner's death sentence.' The plurality first pointed out that the jury in Godfrqey had received no judicial guidance regarding the meaning of the terms of section b(7)1 and, therefore, was free to define and apply the section in whatever manner it deemed best. Indeed, the jury's sentencing verdict simply ac- knowledged that the offense "was outrageously or wantonly vile, horri- ble and inhuman,"' 4 which, standing alone, does not indicate "any inherent restraint on the

arbitrary and capricious infliction of the death sentence."' 1 The plurality concluded that these infirmities at the sen- tencing stage could have been corrected on appellate review if the Geor- gia Supreme Court had conducted a proper examination of the facts of the case.' 2 The Georgia court, however, only asserted that the section b(7) finding was factually substantiated 3 by the evidence, 4 providing performed its review role consistently, citing the number of reversals by the Georgia court as sup- port for his position. 446 U.S. 420, 452-53 (1980) (White, J., dissenting). Since Gregg v.

Georgia, however, there have been no reversals ofajury's finding of a section b(7) aggravating circumstance. Id. at 440 (Marshall, J., concurring in judgment). In addition, the number of reversals reflects not only the performance ofthe reviewing court, but also that of the trial court. The fact that appellate review is immediate in death penalty cases also affects these figures. Id. at 452-53 (White, J., dissent- ing). The number of reversals, therefore, does not clarify whether the Georgia Supreme Court has adequately performed its review function. See Dix, supra note 54, at 111 (small

percentage of death sentences reduced on merits suggests that court's review has not been vigorous). 136. See Holton v. State, 243 Ga. 312, 253 S.E.2d 736 (death sentence upheld where defendant shot victims and no torture or aggravated battery involved prior to death), cert. denied, 444 U.S. 925 (1979); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (death sentence upheld where defendant shot victim with shotgun and no torture or aggravated battery involved), cert. denied, 444 U.S. 995 (1979); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976) (death sentence upheld where defendant shot victims

with shotgun), cert denied, 430 U.S. 975 (1977). 137. 446 U.S. 420, 423 (1980) (plurality opinion). 138. Id. at 433 (plurality opinion). 139. Id. 140. Id. at 426 (plurality opinion). Justice White emphasized in his dissent that the jury's abbreviated recitation of its finding in no way indicates its lack of understanding. Id. at 448 (White, J., dissenting). 141. 446 U.S. 420, 428 (1980) (plurality opinion). 142. Id. at 429-33 (plurality opinion). 143. The Georgia Supreme Court cannot approve a death sentence until it has independently assessed the evidence and determined that such evidence

supports the sentencing authority's find- ing of an aggravating circumstance. GA. CODE ANN. 27-2537(c)(2) (1978).
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852 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 no indication of whether the Blake and Haris criteria had been applied. Upon its review of the facts, and using the Georgia Supreme Court's own criteria, the plurality in Godfe held that the Georgia court could not have "applied a constitutional construction of the phrase 'outra- geously or wantonly vile, horrible or inhuman in that [they] involved depravity of mind. "'145 The victims were killed instantly. In

addition, the victims were family members who had caused the peti- tioner extreme emotional trauma.' 7 The petitioner, himself, acknowl- edged responsibility for the heinous nature of his crime. 8 The plurality determined on these facts that the petitioner's crime did not fall within the section b(7) aggravating circumstance provision and that there was "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Although the result reached by the plurality in Godfre , is correct, its analysis was cursory and provided little

guidance for future cases involv- ing section b(7). The plurality discussed neither the Georgia Supreme Court's performance in reviewing external circumstances that may in- fluence a jury nor the Court's failure to compare the sentence imposed in Godfrey to those imposed in similar cases. Both of these review func- tions are statutorily required of the Georgia Supreme Court.150 Rather 144. Godfrey v. Georgia, 446 U.S. 420, 432 (1980) (plurality opinion). 145. Id. The plurality assumed that the jury had not contemplated that the crime involved "torture" or an "aggravated battery," because (1)

at trial the prosecutor stated, and the judge acknowledged that the murders did not involve torture, and (2) no claim at trial was ever made that the petitioner committed an aggravated battery. Id. 146. Id. at 433 (plurality opinion). 147. Id. 148. Id. 149. Id. at 432-33 (plurality opinion). ChiefJustice Burger argued in dissent that the crime fell within section b(7) because the petitioner himself had characterized the crime "in terms equivalent to those employed in the Georgia statute." Id. at 442 (Burger, C.J., dissenting). Justice White concluded that the petitioner's crimes were

"definitively vile, horrible, or inhuman Id. at 451 (White, J., dissenting). 150. See GA. CODE ANN. 27-2537(c) (1978). The Georgia Supreme Court has been inconsis- tent in performing both of its review roles. For cases in which the Georgia court has been inconsis- tent in reviewing external circumstances that influence a jury, see Morgan v. State, 241 Ga. 485, 489-92, 246 S.E.2d 198, 200-02 (1978) (Bowles, J., dissenting) (death sentence affirmed where trial court failed to instruct jury that it could sentence defendant to life imprisonment even if it found statutory aggravating

circumstance), cert. denied, 441 U.S. 967 (1979); Blake v. State, 239 Ga. 292, 296, 236 S.E.2d 637, 641 ("If the fact that a two-year-old girl was the victim of an outrageous crime evoked sympathy, that was unavoidable."), cert. denied, 434 U.S. 960 (1977). For cases in which the Georgia Supreme Court has been inconsistent in reviewing the proportion- ality of the penalty as compared to sentences in similar cases, see Baker v. State, 243 Ga. 710, 257 S.E.2d 192 (1979) (death sentence upheld where accomplice received life imprisonment); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979)

(death sentence upheld where accomplice received life imprisonment); Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977) (death sentence upheld where defendant killed his wife, though other domestic murder cases imposed lesser sentences); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976) (death sentence upheld where co-defendant who actually killed victim received lesser sentence), ceri. denied, 445 U.S. 946 (1980). See generalg Dix, supra note 54, at 113 (Georgia Supreme Court has compared death sentences in similar cases, but has broadly categorized cases reducing review value).
Page

19
GEORGIA DEATH PENALTY than ordering new death penalty sentencing procedures in Georgia for those cases relying on section b(7), the plurality simply acknowledged that the Georgia Supreme Court had erred in the performance of its review function in this case. The real defect in Georgia's sentencing process, however, has been at the sentencing stage where the potential for abuse of discretion remains. The plurality failed to investigate further to determine whether there was a pattern of abuse at this stage in other section b(7) cases. Although the plurality suggested that explanatory

instructions on the section should have been given to the jury in the petitioner's case, it refused to order such instructions in future cases.' Because it is unlikely that the Supreme Court will hear future section b(7) cases, a stronger order, either requiring explanatory instructions at the sentencing stage or a more systematic appellate review, should have been issued. Such an order would eliminate the danger that other con- victed offenders will be sentenced to death based on facts similar to those existing in Godfey. It is ironic that the safeguard of the perform- ance of the reviewing

court, in which the plurality has placed so much faith, failed in the petitioner's case. V. THE IMPACT OF GODFREY V GEORGIA A. The Unconstitutional Application Inherent in Section b(7) In Godfrey v. Georgia,' 2 the Supreme Court retreated from its prior decisions on the issue of capital punishment. Four years earlier, in Gregg v. Georgia,153 the Court indicated that the state has a responsibility to define capital crimes specifically, in order to avoid abuse of sentencing discretion. 4 A failure to provide "clear and objective standards"' that "make rationally reviewable the process for

imposing the sentence of death"' 6 results in a pattern of arbitrary and capricious sentencing, prohibited by Fuman v. Georgia 7 and Gregg v. Georgia. The vague terms of section b(7) enable the sentencing authority, in violation of Gregg, to exercise unlimited discretion in interpreting the section.1 9 In addition, the Georgia sentencing procedures facilitate the potential for abuse of discretion by a sentencing judge or jury. The pro- 151. Godfrey v. Georgia, 446 U.S. 420, 428-29 (1980) (plurality opinion). 152. Id. at 420 (plurality opinion). 153. 428 U.S. 153 (1976) (plurality opinion).

154. Id. at 196 n.47 (plurality opinion). 155. Id. at 198 (plurality opinion) (quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974)). 156. Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (plurality opinion). 157. 408 U.S. 238 (1972) (per curiam). 158. 428 U.S. 153, 189 (1976) (plurality opinion). 159. See notes 110-22 & accompanying text supra. 1981]
Page 20
854 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 cedures allow the sentencer to elect between a sentence of life imprison- ment and the death penalty when a section b(7) aggravating circumstance is found to

exist.' 0 Finally, the limited role of review ac- corded the Georgia Supreme Court, coupled with its erratic perform- ance of that role in section b(7) cases, permits the sentencing authority to exercise unbridled discretion in such cases. 1 The inevitable result is the arbitrary and capricious imposition of the death penalty, the very result condemned by the Court in Furman and Gregg. Despite the detrimental differences between the current application of section b(7) and the demands of earlier eighth amendment case law, the Supreme Court again failed to strike down this section of the Georgia

death penalty law in G-dfre. 2 In reaching its result, the Court con- ducted only a cursory examination of the constructions of section b(7) by the reviewing court and the sentencing authority. 3 The question remains whether section b(7) can be constitutionally applied. The reso- lution of this issue depends on whether precise meaning can be given to the language of the section. The vagueness of the terms of section b (7) is the source of the section's infirmity. The most formidable obstacle in giving meaning to section b(7) is the descriptive language of the section. The statute provides that

there must be "torture," "aggravated battery," or "depravity of mind."' 4 These offenses must rise to the level of being "outrageously or wantonly vile, horrible or inhuman." Unfortunately what is "outra- geously or wantonly vile, horrible or inhuman" is open to many con- structions. It is doubtful that the use of more specific jury instructions would overcome these difficulties. The trial judge simply would be re- placing the jury's subjective interpretations of the language with his own. Moreover, judges, like juries, are likely to disagree in their inter- pretations of the meanings of the

terms of section b (7). The result would then be the same as it is now-the arbitrary imposition of the death penalty. The adoption of more explicit statutory guidelines for construing the language of section b(7) also is unlikely. It would be difficult to define "outrageously or wantonly vile, horrible or inhuman" or "depravity of mind" narrowly because these terms are so subjective. If specific exam- ples of such offenses were offered, the section would be so underinclusive 160. See notes 126-29 & accompanying text supra. 161. See notes 130-36 & accompanying text supra. 162. Godfrey v.

Georgia, 446 U.S. 420, 429-33 (1980) (plurality opinion). 163. Id. 164. GA. CODE ANN. 27-2534.1(b)(7) (1978). 165. The Supreme Court, nevertheless, has suggested that it is possible to devise guidelines in regularizing jury sentencing in capital cases. See, e.g., Gregg v. Georgia, 428 U.S. 153, 196 n.47 (1976) (plurality opinion).
Page 21
GEORGIA DEATH PENALTY as to render it worthless. B. The Justices' Views On Capital Punirhment The Justices of the United States Supreme Court hold fundamentally different views on federalism and the extent to which the eighth amend- ment limits

states in imposing the death penalty. This divisiveness on the Court explains, in part, the inconsistency in the capital punishment decisions. 7 It also may reveal the reason for the Court's failure in Gad- frq to declare section b(7) unconstitutionally vague. Chief Justice Burger has consistently adopted a deferential attitude toward the states' application of the death penalty. 8 In Furman, he argued that a legislature's action must be presumed to conform to the standards of decency required by the eighth amendment. 9 The Chief Justice explained that this presumption "can only be negated by

unam- biguous and compelling evidence of legislative default."' 0 He has yet to find that presumption "negated" and has continually voted to uphold states' death penalty laws,' ' with the exception of his vote in Lockett v. 0hio.1 Justice Rehnquist, similarly, has consistently viewed the Court's role in death penalty cases as circumscribed by the states' prerogative.1 3 He has warned the Court that judicial overreaching might "result in sacri- fice of the equally important right of the people to govern them- selves."' 4 Justice Rehnquist has voted to uphold all capital punishment laws.' In

contrast to Chief Justice Burger and Justice Rehnquist, Justice Marshall has continually held that capital punishment is per se uncon- 166. Cf. Browning, supra note 119, at 701-02 (repeal of sections of death penalty laws, like section b(7), desirable on policy grounds because they serve no deterrent purpose). 167. See note 7 spra. 168. Radin, supra note 34, at 1004. 169. 408 U.S. 238, 384 (1972) (Burger, C.J., dissenting). 170. Id. 171. E.g., Coker v. Georgia, 433 U.S. 584, 604 (1977) (Burger, CJ., dissenting); Roberts v. Louisiana, 428 U.S. 325, 337-63 (1976) (Burger, CJ., dissenting);

Woodson v. North Carolina, 428 U.S. 280, 306-07 (1976) (White, J., dissenting); Jurek v. Texas, 428 U.S. 262, 277 (1976) (Burger, CJ., concurring in judgment); Proffitt v. Florida, 428 U.S. 242, 260-61 (1976) (White, J., concur- ring in judgment); Gregg v. Georgia, 428 U.S. 153, 226-27 (1976) (statement of Burger, C.J., and Rehnquist, J.); Furman v. Georgia, 408 U.S. 238, 375 (1972) (Burger, CJ., dissenting). 172. 438 U.S. 586, 589 (1978) (plurality opinion). 173. Radin, supra note 34, at 1004. 174. Furman v. Georgia, 408 U.S. 238, 470 (1972) (Rehnquist, J., dissenting). 175. See, e.g.,

Lockett v. Ohio, 438 U.S. 586, 628 (1978) (Rehnquist, J., concurring in part, dissenting in part); Coker v. Georgia, 433 U.S. 584, 604 (1977) (Burger, CJ., dissenting); Roberts v. Louisiana, 428 U.S. 325, 337 (1976) (White, J., dissenting); Woodson v. North Carolina, 428 U.S. 280, 308 (1976) (Rehnquist, J., dissenting); Jurek v. Texas, 428 U.S. 262, 277 (1976) (White, J., concurring in judgment); Proffitt v. Florida, 428 U.S. 242, 260 (1976) (White, J., concurring in judgment); Gregg v. Georgia, 428 U.S. 153, 226-27 (1976) (statement of Burger, CJ., and Rehn- quist, J.); Furman v. Georgia, 408

U.S. 238, 465 (1972) (Rehnquist, J., dissenting). 1981]
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 stitutional. 6 According to Justice Marshall, society would not sanction the death penalty if it were better informed about it. 1 Moreover, capi- tal punishment is no more effective a deterrent to the crime of murder than are other penalties. 8 The death penalty is inconsistent, therefore, with the mandates of the eighth amendment. 9 Justice Marshall views the issue as one of constitutional magnitude and well within the purview of the Court. 0 He has voted to strike down

all death penalty statutes. 181 Justice Brennan, like Justice Marshall, has consistently adopted an activist eighth amendment attitude, though Justice Brennan is the more activist of the two. 182 According to Justice Brennan, "Judicial enforce- ment of the [Cruel and Unusual Punishments] Clause, then, cannot be evaded by invoking the obvious truth that legislatures have the power to proscribe punishments for crimes."' 3 Justice Brennan has voted to abolish the death penalty 4 because he believes the Court is "com- pelled" to determine what is "cruel and unusual" under the eighth amendment.1 In

Furman and Gregg, Justice Blackmun was unwilling to interfere with the legislative judgment of the states.' 6 He voted to uphold the death penalty laws in both cases.' 7 After 1976, however, he voted to strike down state capital punishment laws when the penalty was im- 176. Radin, supra note 34, at 1006-07. 177. Furman v. Georgia, 408 U.S. 238, 360-64 (1972) (Marshall, J., concurring). 178. Id. at 342-58 (Marlhall, J., concurring). 179. Id. at 370 (Marshall, J., concurring). 180. Justice Marshall stated, "The point has now been reached at which deference to the legis- latures is tantamount to

abdication of ourjudicial roles as factfinders, judges, and ultimate arbiters of the Constitution." Id. at 359 (Marshall, J., concurring). 181. E.g., Lockett v. Ohio, 438 U.S. 586, 619 (1978) (Marshall, J., concurring in judgment); Coker v. Georgia, 433 U.S. 584, 600 (1977) (Marshall, J., concurring in judgment); Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (Marshall, J., concurring in judgment); Woodson v. North Carolina, 428 U.S. 280, 306 (1976) (Marshall, J., concurring in judgment); Jurek v. Texas, 428 U.S. 262, 277 (1976) (Marshall, J., dissenting); Proffitt v. Florida, 428 U.S. 242,

260 (1976) (Marshall, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 231 (1976) (Marshall, J., dissenting); Furman v. Geor- gia, 408 U.S. 238, 314 (1972) (Marshall, J., concurring). 182. Radin, supra note 34, at 1005. 183. Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring). 184. E.g., Coker v. Georgia, 433 U.S. 584, 600 (1979) (Brennan, J., concurring in judgment); Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (Brennan, J., concurring in judgment); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (Brennan, J., concurring in judgment); Jurek v. Texas, 428 U.S. 262, 277

(1976) (Brennan, J., dissenting); Proffitt v. Florida, 428 U.S. 242, 260 (1976) (Brennan, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 227 (1976) (Brennan, J., dissenting); Furman v. Georgia, 408 U.S. 238, 257 (1972) (Brennan, J., concurring). 185. Gregg v. Georgia, 428 U.S. 153, 230 (1976) (Brennan, J., dissenting). 186. Radin, supra note 34, at 1009. 187. Gregg v. Georgia, 428 U.S. 153, 227 (1976) (Blackmun, J., concurring in judgment); Furman v. Georgia, 408 U.S. 238, 405 (1972) (Blackmun, J., dissenting). Justice Blackmun also voted to uphold state death penalty statutes in Roberts v.

Louisiana, 428 U.S. 325, 363 (1976) (Blackmun, J., dissenting); Woodson v. North Carolina, 428 U.S. 280, 307 (1976) (Blackmun, J., dissenting); Jurek v. Texas, 428 U.S. 262, 279 (1976) (Blackmun, J., concurring in judgment); Prof- fitt v. Florida, 428 U.S. 242, 261 (1976) (Blackmun, J., concurring in judgment).
Page 23
GEORGIA DEATH PENALTY posed for the crime of rape' 8 or for the offense of aiding and abetting in an armed felony.' 9 It appears that he changed his views based on theory of disproportionality; the penalty was disproportionate to the of- fense. In this way, Justice

Blackmun's attitude has shifted to only partial deference to the states. Justice White has vacillated on the death penalty issue. It is difficult to identify any single reason for the changes in his position. In Furman, he took an activist stance on the eighth amendment, voting to strike down the death penalty laws because they served no deterrent pur- pose. ' Justice White's activist attitude shifted to one of deference to the states in Gregg and its companion cases, where he voted to uphold the death penalty statutes.1 2 Just one year later, in Coker v. Georgia, he found that the Court's

constitutional function was to act as "the ulti- mate arbiter" of the cruelty of a punishment. 3 He voted, therefore, to strike the death penalty for the crime of rape. 4 In Lockett v. Ohio, Jus- tice White again turned his focus, as he had in Furman, to the goal of deterrence. He voted to reverse the death sentence where the petitioner lacked the intent to kill. The goal of deterrence would not be achieved if no intent to kill existed.1'5 With the exception of their decision in Furman,' 6 Justices Stewart, Powell, and Stevens have consistently been among the plurality in the death penalty

cases. The plurality opinions, however, conflict with one another if evaluated on a doctrinal basis. 7 They are more easily un- derstood if interpreted as part of a governmental process of giving mean- ing to a "living" Constitution. 8 In Furman, for example, the Court was acting in a vacuum; the state legislatures had abandoned the capital punishment issue and public opinion polls indicated a lack of a consen- 188. Coker v. Georgia, 433 U.S. 584 (1977) (plurality opinion). 189. Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion). 190. See Coker v. Georgia, 433 U.S. 584 (1977) (plurality

opinion). 191. 408 U.S. 238, 310 (1972) (White, J., concurring). See Radin, supra note 34, at 1002-03 (Justice White's vote was based on his personal experience). 192. Roberts v. Louisiana, 428 U.S. 325, 337 (1976) (White, J., dissenting); Woodson v. North Carolina, 428 U.S. 280, 306 (1976) (White, J., dissenting); Jurek v. Texas, 428 U.S. 262, 277 (1976) (White, J., concurring in judgment); Proffitt v. Florida, 428 U.S. 242, 260 (1976) (White, J., concur- ring in judgment); Gregg v. Georgia, 428 U.S. 153, 207 (1976) (White, J., concurring in judgment). 193. 433 U.S. 584 (1977) (plurality

opinion). 194. Id. at 592. 195. Lockett v. Ohio, 438 U.S. 586, 621 (1978) (White, J., concurring in part, dissenting in part). 196. In Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), Justice Stewart voted to strike down the death penalty laws. Id. at 306 (Stewart, J., concurring). Justice Powell, however, voted to retain the statutes. Id. at 414 (Powell, J., dissenting). Justice Stevens was not on the Court at the time that Furman v. Georgia was decided. 197. Justice Rehnquist stated, "[W]hile we may not be writing on a clean slate, the Court is scarcely faithful to what has been written

before." Lockett v. Ohio, 438 U.S. 586, 631 (1978) (Rehnquist, J., concurring in part, dissenting in part). See note 7 sura. 198. See Murchison, supra note 2, at 537. 1981]
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858 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 sus on the question. 199 The Court had to make its own assessment of the collective conscience of the people. The pressure to act was com- pounded by an increasing number of condemned prisoners and un- dertones of racial discrimination. 1 The plurality in Furman, by striking down all discretionary death penalty laws in the United States, com- pelled the

states to promulgate new legislation on the issue of capital punishment. In Gregg the Court faced a different situation. A majority of the states had demonstrated their approval of capital punishment by enacting death penalty statutes. 3 The plurality of the Court, therefore, adopted a deferential attitude toward the states by holding that the death pen- alty for murder was not cruel and unusual punishment. 4 In this way, the focus of the plurality changed after Gregg. The question no longer was whether the Court could prohibit the states from promulgating cap- ital punishment laws, but to

what extent the Court could limit the states' imposition of the death penalty. The decision in Coker v. Georgia demonstrated the plurality's unwill- ingness to defer completely to the political process of the states, in order to ensure that the death penalty is not imposed arbitrarily. 6 Similarly, in Lockett v. Ohio the plurality limited the states' ability to specify miti- gating factors in capital cases in order to protect defendants against un- just infliction of cruel and unusual punishment. The Justices' varying attitudes culminated in the plurality opinion of Godfrey, in which

no.single, clear holding appears. The deferential atti- tudes of Chief Justice Burger and Justice Rehnquist were predictable, based on the consistency of their earlier views. 8 Justices Marshall and Brennan's activist stance also was predictable. 9 In the last three years, 199. Id. at 538-39. 200. There were over 600 prisoners on death row. Furman v. Georgia, 408 U.S. 238, 316 (1972) (Marshall, J., concurring). 201. See notes 43, 46 & accompanying text supra. 202. See Murchison, supra note 2, at 540. 203. In the 45 month period between June 1972 and March 1976, 460 persons were sentenced to

death. Gregg v. Georgia, 428 U.S. 153, 182 (1976) (plurality opinion). Justice White explained, "This public judgment as to the acceptability of capital punishment, evidenced by the immediate, post-Furman legislative reaction in a large majority of the States, heavily influenced the Court to sustain the death penalty for murder in Gregg v. Georgia." Coker v. Georgia, 433 U.S. 584, 594 (1978) (plurality opinion). 204. See Comment, supra note 53, at 363. 205. See Murchison, supra note 2, at 548 (question now is specific parameters of eighth amend- ment limitation). 206. Id. at 543-44. 207. 438

U.S. 586, 604 (1978) (plurality opinion). 208. Chief Justice Burger stated that "it is emphatically not our province to second-guess the jury's judgment or to tell the States which of their 'hideous,' intentional murderers may be given the ultimate penalty." Godfrey v. Georgia, 446 U.S. 420, 443-44 (1980) (Burger, C.J., dissenting). 209. See id. at 433-42 (Marshall, J., concurring). Justice Brennan joined in Justice Marshall's opinion.
Page 25
GEORGIA DEATH PENALTY Justice Blackmun has adhered to a theory of disproportionality in vot- ing on death penalty laws. This theory may

explain why he voted to uphold section b(7). It does not account for his vote to reverse the peti- tioner's sentence in Godfrqey. Justice White's position in Godfrey, however, was less predictable. Just three years earlier, White stated that it is the constitutional function of the Court to act as the ultimate arbiter of the cruelty of a punish- ment. 1 In Godfrey, however, he took the position that "[o]ur mandate does not extend to interfering with fact finders in state criminal proceed- ings or with state courts .... ",212 He voted, therefore, to uphold the Georgia death statute and the

petitioner's sentence. In addition, Godqey destroys the symmetry of the recent plurality opinions in which the Court deferred to the states, both on the issue of statutory construction and on the issue of judicial implementation of death penalties. Although the Court reversed the petitioner's sentence, it refused to strike the aggravating circumstance provision of section b(7). 4 On this latter point it appears that the plurality again deferred to the state. The Court's interference with the state's sentencing of the petitioner, however, undercuts and confuses the plurality's position. The

state of Georgia is empowered to apply section b(7), but is given little guidance as to how to apply it so that its decision may withstand constitutional attack. C The Continued Unconstitutional Application of Section b(7) In Godfry v. Georgia and earlier death penalty cases, the Supreme Court failed to provide clear standards for the states to follow in draft- ing, interpreting, and applying capital punishment statutes. This has created a void in which the states must act, inevitably resulting in the states' unconstitutional infliction of capital punishment. Georgia cases decided after

Godrey, which further broaden the meaning of section b(7), illustrate this point. 210. Se id. at 422-33 (plurality opinion). Justice Blackmun joined in the plurality opinion. 211. See notes 193-94 & accompanying text supra. 212. Godfrey v. Georgia, 446 U.S. 420, 451 (1980) (White, J., dissenting). 213. Id. at 444 (White, J., dissenting). 214. Id. at 422-33 (plurality opinion). 215. Cases based on the b(7) aggravating circumstance provision, decided since God6oi v. Gorgia, include: Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980); Green v. State, 246 Ga. 598, 272 S.E.2d 475, art. denied, 101

S. Ct. 1402 (1981); Cape v. State, 246 Ga. 520, 272 S.E.2d 487 (1980); Hamilton v. State, 246 Ga. 264, 271 S.E.2d 173 (1980); Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980); Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980); Baker v. State, 246 Ga. 259, 272 S.E.2d 61 (1980); Dampier v. State, 245 Ga. 882, 268 S.E.2d 349, cert denied, 101 S. Ct. 337 (1980); Mulligan v. State, 245 Ga. 881, 268 S.E.2d 351, cert. denied, 101 S. Ct. 407 (1980); Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert denied, 101 S. Ct. 407 (1980); and Hance v. State, 245 Ga. 856, 268 S.E.2d 339, ceri. denied, 101

S. Ct. 796 (1980). 1981]
Page 26
860 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 30:835 Pre-GodfrV decisions defined "depravity of mind" as reflecting only the murderer's mental state. 6 In Dampier v. State, 7 decided after ad- fig, evidence of psychological abuse to the victims was held to show "depravity of mind." 8 In addition, the court in Hance v. Slate 9 held that evidence of physical abuse to the victim following death showed "depravity of mind." 0 The Georgia Supreme Court reasoned that if the victim is "tortured" by physical or psychological abuse, the mur- derer exhibits

"depravity of mind." This logic implies that whenever there is "torture" there necessarily is "depravity of mind." If this is the intent of the Georgia court, "torture" should be eliminated from section b(7) as useless verbiage. Under such a construction, "torture" would be just an example of a crime that exhibits the defendant's depraved mental state. The Georgia court's confusion after adfre has manifested itself in the more serious realm ofjury instructions. In Cape v. State, 1 the trial court failed to give a limiting charge to the jury on section b(7). 2 The re- viewing court,

nevertheless, upheld the petitioner's sentence by skirting the issue of explanatory jury instructions. The Georgia Supreme Court stated that "a limiting charge was not required under the facts of this case." 3 The argument that there is no need to explain ambiguous stat- utory language when a crime is sufficiently heinous can be traced to the vague admonition on jury instructions given in Godfre. 4 The argu- ment, however, remains unsound in view of the potential for abuse of discretion by the sentencing authority. Cape v. State presents an ominous sign that Georgia will continue to allow a

judge or jury to define section 216. See Harris v. State, 237 Ga. 718, 732-33, 230 S.E.2d 1, 10-11 (1976), cert. denied, 431 U.S. 933 (1977). 217. 245 Ga. 882, 268 S.E.2d 349, cert denied, 101 S. Ct. 337 (1980). 218. Defendant killed the victim with a shotgun after forcing the victim to drive his own vehi- cle to the execution site. Id. Under Damp ierv. State, evidence of psychological abuse prior to death "may amount to serious physical abuse (i.e., torture of the victim), and will support a finding of depravity of mind of the defendant." Id. at 884, 268 S.E.2d at 350. 219. 245 Ga. 856, 268

S.E.2d 339, cert. denied, 101 S. Ct. 796 (1980). 220. Id. at 861, 268 S.E.2d at 345. The defendant killed his female victim by striking her repeatedly with a tire jack. Id. In Hance a. State, the Georgia Supreme Court found that a section b(7) aggravating circumstance may be upheld if "(I) the offense of murder was outrageously or wantonly vile, horrible or inhuman (I1) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant." Id. at 860, 268 S.E.2d at 345. Accord, Brooks v. State, 246 Ga. 262, 263, 271 S.E.2d 352, 355

(1980); Baker v. State, 246 Ga. 259, 260,272 S.E.2d 61, 62 (1980); Fair v. State, 245 Ga. 868, 884, note, 268 S.E.2d 316, 325, cert. denied, 101 S. Ct. 407 (1980). But cf. Green v. State, 246 Ga. 598, 607, 272 S.E.2d 475, 485, cert. denied, 101 S. Ct. 1402 (1981) (age and physical characteristics of victim may be considered in determining whether there was "depravity of mind"). 221. 246 Ga. 520, 272 S.E.2d 487 (1980) (defendant beat and stabbed to death a 15-year-old victim). 222. Id. at 527, 272 S.E.2d at 494. 223. Id. 224. 446 U.S. 420, 429 (1980) (plurality opinion).
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GEORGIA DEATH PENALTY b(7) in whatever mannner the sentencer wishes. This discretion at the sentencing stage will result in the continued arbitrary application of the death penalty in section b(7) cases. VI. CONCLUSION A plurality in Godfrq v. Georgia held that the death penalty can be constitutionally applied in Georgia under the aggravating circumstance language of section b(7). Although the plurality held that the construc- tion of the statute in question was overly broad, the Court failed to find the statute unconstitutionally vague on its face. Furthermore, the Court failed to recognize

the inability of a reviewing court to rectify the uncon- stitutional imposition of the death penalty at the trial level. The infirmities of dfryq are due, in large part, to the Justices' dispa- rate views about capital punishment and the reach of the eighth amend- ment's prohibition on "cruel and unusual punishments." The Court remains divided on such critical questions as whether the death penalty is per se unconstitutional, whether the Georgia death statute is unconsti- tutional, and whether section b(7) is unconstitutional. Given this confu- sion, it is unlikely that the Court's

goal--elimination of "arbitrary and capricious" death sentences-will be realized. KATHRYN W. RILEY 1981]