Tuilaepa v. California, 512 U.S. 967, 29 (1994)

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Cite as: 512 U. S. 967 (1994)

Blackmun, J., dissenting

assumption, not tested, that the special circumstances perform all of the constitutionally required narrowing for eligibility. Should that assumption prove false, it would further undermine the Court's approval today of these relevant factors.

Similarly, in Pulley v. Harris, 465 U. S. 37, 51 (1984), the Court's conclusion that the California capital sentencing scheme was not "so lacking in other checks on arbitrariness that it would not pass constitutional muster without comparative proportionality review" was based in part on an understanding that the application of the relevant factors " 'provide[s] jury guidance and lessen[s] the chance of arbitrary application of the death penalty,' " thereby " 'guarantee[ing] that the jury's discretion will be guided and its consideration deliberate.' " Id., at 53, quoting Harris v. Pulley, 692 F. 2d 1189, 1194, 1195 (CA9 1982). As litigation exposes the failure of these factors to guide the jury in making principled distinctions, the Court will be well advised to reevaluate its decision in Pulley v. Harris.

In summary, the Court isolates one part of a complex scheme and says that, assuming that all the other parts are doing their job, this one passes muster. But the crucial question, and one the Court will need to face, is how the parts are working together to determine with rationality and fairness who is exposed to the death penalty and who receives it.

III

For two decades now, the Court has professed a commitment to guiding sentencers' discretion so as to "minimize the risk of wholly arbitrary and capricious action," Gregg v. Georgia, 428 U. S., at 189 ( joint opinion of Stewart, Powell, and Stevens, JJ.), and to achieve principled distinctions between those who receive the death penalty and those who do not, see, e. g., Espinosa v. Florida, 505 U. S. 1079 (1992); Shell v. Mississippi, 498 U. S. 1 (1990); Maynard v. Cart-

995

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