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21 Colum. J.L. & Soc. Probs. 385 (1987-1988)
A Procedural Due Process Argument for Proportionality Review in Capital Sentencing

handle is hein.journals/collsp21 and id is 395 raw text is: A Procedural Due Process Argument for Proportionality Review in Capital Sentencing ROBERT MCAULIFFE* I. INTRODUCTION The Supreme Court now holds that the eighth amendment does not require appellate review of a death sentence to determine whether the sentence is being proportionately applied. In Pulley v. Harris,1 the Court held that the eighth amendment does not re- quire a state appellate court to compare the sentence in the case before it with penalties imposed in similar cases throughout the state before it affirms a death sentence.2 The Court rejected the contention that Furman v. Georgia' and its progeny constitution- ally mandated comparative proportionality review of every death sentence. But in deciding Harris' constitutional claim, the Court limited its holding to whether the eighth amendment, of its own force, re- quired certain procedural protections for capital defendants. Har- ris had argued that the imposition of the sentence violated his right to due process.5 He claimed that the state judicial practice of regularly conducting a proportionality review of death sentences created a substantive right to receive such a review,' and that this right invoked fourteenth amendment due process protection. The Court found that no state entitlement to a proportionality review existed,8 and thus did not reach the due process claim. * Writing & Research Editor, Colum. J.L. & Soc. Probs., 1987-88. 1. 465 U.S. 37 (1984). 2. Id. at 50-51. 3. 408 U.S. 238 (1972). 4. Zant v. Stephens, 462 U.S. 862 (1983); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Gregg v. Georgia, 428 U.S. 153 (1976). 5. Brief for Respondent at 56-64, Pulley v. Harris, 465 U.S. 37 (1984) (No. 82-1095). 6. Id. at 59-60. 7. Id. Harris' claim of a state entitlement would require the Supreme Court to deter- mine procedural protections mandated by the fourteenth amendment regardless of the pro- tections required by the eighth amendment. Thus, the fourteenth amendment may require a proportionality review despite the fact that the eighth amendment does not. 8. Pulley v. Harris, 465 U.S. 37, 41-42 (1984). The Court deferred to the California Supreme Court's ruling that it simply did not regularly conduct proportionality reviews of

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