Rehearing Denied Dec. 3, 1984.
See 469 U.S. 1077.
On petition for writ of certiorari to the Supreme Court of
Illinois.
The petition for a writ of certiorari is denied.
Page 469 U.S.
894 , 895
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
I would grant certiorari to consider the constitutionality of
the Illinois death penalty statute, which vests in the prosecutor
the unlimited and unguided discretion to trigger death sentencing
proceedings. Under the statute, a death sentencing proceeding will
follow a conviction for a crime punishable by death only "[w]here
requested by the State." Ill.Rev.Stat., ch. 38, 9-1(d) (Supp.1984).
If the prosecutor chooses not to request such a proceeding, the
defendant cannot be sentenced to death.
Yet the prosecutor's decision whether to make this request is
not guided by any legislative standard. Thus, the Illinois scheme
introduces unbridled discretion at a stage at which "discretion
must be suitably directed and limited so as to minimize the risk of
wholly arbitrary and capricious action." Gregg v. Georgia,
428 U.S.
153, 189, 2932 (1976) (joint opinion announcing the judgment of
the Court). Accordingly, a substantial question is presented as to
the constitutionality of the statute.
I
At the outset, it is important to state clearly what this case
is not about. It is not about prosecutorial discretion in an area
traditionally committed to such discretion. The discretion at issue
here is fundamentally different from the discretion a prosecutor
exercises in determining whether to seek an indictment for an
offense punishable by death, or to accept a plea of guilty to a
lesser included offense. What is at stake, instead, is standardless
discretion at the postconviction phase of capital cases-the phase
in which this Court has repeatedly emphasized that discretion must
be carefully guided.
The joint opinion announcing the Court's judgment in Gregg v.
Georgia, supra, carefully distinguishes preconviction
discretion-which it deems permissible-from postconviction
discretion-which, it states, can render a scheme unconstitutional.
That opinion makes clear that unguided discretion at the latter
stage is impermissible: "[T]he decision to impose the death
sentence on a specific individual who ha[s] been convicted of a
capital offense" must be guided by standards and cannot be imposed
on a "capriciously selected group of offenders." Id., at 199
(Stewart, POWELL, and STEVENS, JJ.).
Page 469 U.S.
894 , 896
II
In my mind, there are serious questions about the
constitutionality of a scheme that gives the prosecutor the
unbridled discretion to select, from the group of individuals
convicted of an offense punishable by death, the subgroup that will
be considered for death. The Court has focused its concern in death
penalty cases on the decision of which defendants, among the many
convicted of offenses punishable by death, will actually receive
the death penalty. See, e.g., Pulley v. Harris,
465 U.S.
37, 44, 876 (1984); Lockett v. Ohio,
438 U.S. 586, 600-601,
2962-2963 (1978). It is at this stage-in which the focus of the
proceedings shifts from the nature of the crime to the nature of
the defendant-that arbitrariness, discrimination, and irrationality
are most likely to infect the decision whether a defendant will
live or die. To minimize the potential for these abuses, the Court
has consistently required that, following conviction of an offense
punishable by death, discretion in determining who will receive the
death penalty be limited by statutory standards.
The Illinois scheme differs from schemes this Court has approved
in that capital sentencing proceedings in Illinois do not
inexorably follow conviction for a crime punishable by death.
Instead, the prosecutor has the authority-and the duty-to narrow
down the class of convicted defendants. Yet the Illinois statute
does not set any standards to guide that decision. Such unguided
discretion cannot help but produce the sort of arbitrary,
capricious, and discriminatory application of the death penalty
that is simply intolerable under Furman v. Georgia,
408 U.S. 238 (1972).
Because the prosecutor has no standards to guide his postconviction
decision, the Illinois scheme eliminates any "meaningful basis for
distinguishing the few cases in which [ the death penalty] is
imposed from the many cases in which it is not." Id., at 313
(WHITE, J., concurring).
The potential for arbitrariness in the imposition of the death
penalty is further exacerbated because the discretion to initiate
sentencing proceedings is not vested in one individual, but in the
State's Attorneys of each of the State's 102 counties. Each of
these 102 individuals, subject to the different political pressures
of his own constituency, can establish his own policy-or no policy
at all-on how to narrow the group of individuals convicted of
crimes punishable by death, and in this endeavor he is not aided
by
Page 469 U.S.
894 , 897
any legislatively imposed standard or limited by any
legislatively imposed constraint. People ex rel. Carey v. Cousins,
77 Ill. 2d
531, 557-558, 34 Ill.Dec. 137, 150,
397 N.E.2d
809, 822 (1979) (Ryan, J., dissenting); see People v. Lewis,
88 Ill. 2d
129, 192, 58 Ill.Dec. 895,
430 N.E.2d
1346, 1376-1377 (1981) (Simon, J., dissenting). In such a
system, there will often be no rational distinction between an
individual who receives the death penalty and one who does not.
III
The postconviction discretion that the Illinois statute vests in
prosecutors is particularly pernicious because it is coupled with
the absence of a clear requirement of comparative proportionality
review of death sentences on appeal. The Illinois death penalty
statute does not mandate such review, and the Illinois Supreme
Court has been ambiguous about whether it would ever engage in
analysis of this type. See People v. Kubat,
94 Ill. 2d
437, 502-504, 69 Ill.Dec. 30, 60-61,
447 N.E.2d
247, 277- 278 (1983); People v. Brownell,
79 Ill. 2d
508, 541-544, 38 Ill.Dec. 757, 774-775,
404 N.E.2d
181, 198-199 (1980). Thus, the scheme does not at any stage
assure that like cases in Illinois are treated alike, and provides
no mechanism to protect against arbitrary, capricious, or
discriminatory winnowing of defendants convicted of crimes
punishable by death.
Central to the Court's decision in Pulley v. Harris, supra, that
comparative proportionality review is not in all capital cases
constitutionally required was the fact that the scheme provided
adequate standards to guide the decision whether individuals
convicted of first- degree murder should be sentenced to death.
Given such standards, the Court did not see much potential for
arbitrary and capricious action. Id., 465 U.S., at 53. But the
Court did state clearly that comparative proportionality review is
a safeguard, id., at 50, and that it might be constitutionally
required in a scheme that did not contain sufficient other adequate
safeguards, id., at 51, 104 S.Ct ., at 880.
Under the Illinois scheme, there are no standards to guide an
important part of the decision as to which defendants, among those
convicted of crimes punishable by death, are actually sentenced to
death. Thus, even if prosecutors try to act responsibly-whatever
this might mean under the scheme-consistency is unattainable
because they have no standards to guide their actions. The
safeguards identified in Pulley might adequately
Page 469 U.S.
894 , 898
protect the rationality of the death sentencing process once the
prosecutor has initiated that process, but they in no way assure
consistency across the spectrum of defendants who are convicted of
offenses punishable by death. Thus, without comparative
proportionality review, there is absolutely no guarantee that
similarly situated defendants, charged and convicted for similar
crimes, will not be treated differently. Irrationality and
arbitrariness, even discrimination, are likely to be the norm.
IV
I continue to adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment forbidden by the Eighth
and the Fourteenth Amendments. See Gregg v. Georgia, 428 U.S., at
231 (MARSHALL, J., dissenting); Furman v. Georgia, supra, 408 U.S.,
at 314 (MARSHALL, J., concurring). The issue in this case, however,
is such that I would grant review of the sentence even if I
accepted the prevailing view that the death penalty may be
constitutionally imposed under certain circumstances. The Illinois
death penalty statute vests in the prosecutor unbridled discretion
at a stage in the proceedings at which the Court has consistently
stated that discretion must be channelled to prevent the arbitrary,
capricious, and discriminatory application of the death penalty.
The consideration of the constitutionality of this statute is, I
believe, worthy of the attention of this Court. For that reason, I
respectfully dissent.
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