May 2009 Vol. 107 No. 7 THE REVIEW

The Court of Life and Death: The Two Tracks of Constitutional Sentencing Law and the Case for Uniformity

Rachel E. Barkow

The Supreme Court takes two very different approaches to substantive sentencing law. Whereas its review of capital sentences is robust, its oversight of noncapital sentences is virtually nonexistent. Under the Court’s reading of the Constitution, states must draft death penalty statutes with enough guidance to avoid death sentences being imposed in an arbitrary and capricious manner. Mandatory death sentences are disallowed, and the sentencing authority must have the opportunity to consider mitigating evidence. The Court will scrutinize whether the death sentence is proportionate to the crime and the defendant, and it has frequently exempted certain crimes and certain offenders from a capital sentence to avoid an unconstitutionally excessive punishment. The Court does not insist on any of these requirements in noncapital cases.

This Article argues for the abandonment of this two-track approach to sentencing. It finds no support in the Constitution and the functional arguments given by the Court to support its capital decisions apply with equal force to all other criminal punishments. But it is not just the Court’s poor legal reasoning that makes its sentencing jurisprudence misguided. It has also been a policy failure for capital and noncapital defendants alike. As long as the two tracks exist, significant sentencing reform is all but impossible. If, as a matter of constitutional law, death were no longer different, our criminal justice system would be—and almost certainly for the better.

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