Sober second thoughts: Reflections on two decades of constitutional regulation of capital punishment

Harvard Law Review

Volumn 109, Issue 2, 1995, Pages 357-437

  Steiker, Carol S ^a,b   Steiker, Jordan M ^a,c,d  

^a HARVARD LAW SCHOOL   (United States)

^b Harvard Radcliffe College   (United States)

^c UNIVERSITY OF TEXAS   (United States)

^d WESLEYAN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11944250374     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341977     Document Type: Article

References (456)

1. 408 U.S. 238 (1972).
2. 428 U.S. 153 (1976).
3. See Roberts v. Louisiana, 428 U.S. 325 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Proffitt v. Florida, 428 U.S. 242 (1976).
4. See, e.g., SAMUEL R. GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 9-10 (1989) (claiming that the federal courts are devoted to a "fiction of their own invention" that procedural capital sentencing reforms have been effective); Michael Millemann, Capital Post-Conviction Petitioners' Right to Counsel: Integrating Access to Court Doctrine and Due Process Principles, 48 MD. L. REV. 455, 487 (1989) (contending that capital punishment doctrine includes "some of the most complicated, dynamic, and at times inconsistent bodies of law that exist"); Shelley Clarke, Note, A Reasoned Moral Response: Rethinking Texas' Capital Sentencing Statute After Penry v. Lynaugh, 69 TEX. L. REV. 407, 416-18 (1990) (describing capital punishment doctrine as a "confusing array of ill-defined concepts, conflicting pronouncements, ipse dixits and short-lived precedents" (footnotes omitted)). But see Louis D. Bilionis, Legitimating Death, 91 MICH. L. REV. 1643, 1649 (1993) (arguing, in opposition to the above-described consensus, that "a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology").
5. See, e.g., SAMUEL R. GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 9-10 (1989) (claiming that the federal courts are devoted to a "fiction of their own invention" that procedural capital sentencing reforms have been effective); Michael Millemann, Capital Post-Conviction Petitioners' Right to Counsel: Integrating Access to Court Doctrine and Due Process Principles, 48 MD. L. REV. 455, 487 (1989) (contending that capital punishment doctrine includes "some of the most complicated, dynamic, and at times inconsistent bodies of law that exist"); Shelley Clarke, Note, A Reasoned Moral Response: Rethinking Texas' Capital Sentencing Statute After Penry v. Lynaugh, 69 TEX. L. REV. 407, 416-18 (1990) (describing capital punishment doctrine as a "confusing array of ill-defined concepts, conflicting pronouncements, ipse dixits and short-lived precedents" (footnotes omitted)). But see Louis D. Bilionis, Legitimating Death, 91 MICH. L. REV. 1643, 1649 (1993) (arguing, in opposition to the above-described consensus, that "a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology").
6. See, e.g., SAMUEL R. GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 9-10 (1989) (claiming that the federal courts are devoted to a "fiction of their own invention" that procedural capital sentencing reforms have been effective); Michael Millemann, Capital Post-Conviction Petitioners' Right to Counsel: Integrating Access to Court Doctrine and Due Process Principles, 48 MD. L. REV. 455, 487 (1989) (contending that capital punishment doctrine includes "some of the most complicated, dynamic, and at times inconsistent bodies of law that exist"); Shelley Clarke, Note, A Reasoned Moral Response: Rethinking Texas' Capital Sentencing Statute After Penry v. Lynaugh, 69 TEX. L. REV. 407, 416-18 (1990) (describing capital punishment doctrine as a "confusing array of ill-defined concepts, conflicting pronouncements, ipse dixits and short-lived precedents" (footnotes omitted)). But see Louis D. Bilionis, Legitimating Death, 91 MICH. L. REV. 1643, 1649 (1993) (arguing, in opposition to the above-described consensus, that "a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology").
7. See, e.g., SAMUEL R. GROSS & ROBERT MAURO, DEATH AND DISCRIMINATION: RACIAL DISPARITIES IN CAPITAL SENTENCING 9-10 (1989) (claiming that the federal courts are devoted to a "fiction of their own invention" that procedural capital sentencing reforms have been effective); Michael Millemann, Capital Post-Conviction Petitioners' Right to Counsel: Integrating Access to Court Doctrine and Due Process Principles, 48 MD. L. REV. 455, 487 (1989) (contending that capital punishment doctrine includes "some of the most complicated, dynamic, and at times inconsistent bodies of law that exist"); Shelley Clarke, Note, A Reasoned Moral Response: Rethinking Texas' Capital Sentencing Statute After Penry v. Lynaugh, 69 TEX. L. REV. 407, 416-18 (1990) (describing capital punishment doctrine as a "confusing array of ill-defined concepts, conflicting pronouncements, ipse dixits and short-lived precedents" (footnotes omitted)). But see Louis D. Bilionis, Legitimating Death, 91 MICH. L. REV. 1643, 1649 (1993) (arguing, in opposition to the above-described consensus, that "a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology").
8. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (criticizing constitutional criminal procedure generally).
9. See, e.g., 141 CONG. REC. S4593 (daily ed. Mar. 24, 1995) (statement of Sen. Specter) ("Federal habeas corpus is a complex and arcane subject. Its difficult and restrictive rules simply delay imposition of the death penalty and render it useless as a deterrent."); Alex Kozinski & Sean Gallagher, For an Honest Death Penalty, N.Y. TIMES, Mar. 8, 1995, at A21 ("[T]he jurisprudence of death is so complex, so esoteric, so harrowing, this is the one area where there aren't nearly enough lawyers willing and able to handle all the current cases.").
10. See, e.g., H.R. REP. No. 23, 104th Cong., 1st Sess. 10 (1995) ("The result of this system [of federal review of capital punishment] has been the virtual nullification of state death penalty laws through a nearly endless review process."); William F. Buckley, Jr., The War Against Capital Punishment, NAT'L REV., June 25, 1990, at 62, 62 (opining that America's enthusiasm for execution "has generated the longest juridical foreplay in history").
11. See, e.g., DAVID C. BALDUS, GEORGE WOODWORTH & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 419 (1990) (noting the "Supreme Court's significant withdrawal from the field"); RAYMOND PATERNOSTER, CAPITAL PUNISHMENT IN AMERICA at xv (1991) ("[A] substantial number of death sentences continue to be imposed in a fashion that can only be described as 'freakish.'"); WELSH S. WHITE, THE DEATH PENALTY IN THE NINETIES: AN EXAMINATION OF THE MODERN SYSTEM OF CAPITAL PUNISHMENT 207 (1991) (concluding that "the present Court holds that maintaining the smooth functioning of our system of capital punishment is a higher priority than protecting the rights of capital defendants").
12. See, e.g., DAVID C. BALDUS, GEORGE WOODWORTH & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 419 (1990) (noting the "Supreme Court's significant withdrawal from the field"); RAYMOND PATERNOSTER, CAPITAL PUNISHMENT IN AMERICA at xv (1991) ("[A] substantial number of death sentences continue to be imposed in a fashion that can only be described as 'freakish.'"); WELSH S. WHITE, THE DEATH PENALTY IN THE NINETIES: AN EXAMINATION OF THE MODERN SYSTEM OF CAPITAL PUNISHMENT 207 (1991) (concluding that "the present Court holds that maintaining the smooth functioning of our system of capital punishment is a higher priority than protecting the rights of capital defendants").
13. See, e.g., DAVID C. BALDUS, GEORGE WOODWORTH & CHARLES A. PULASKI, JR., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 419 (1990) (noting the "Supreme Court's significant withdrawal from the field"); RAYMOND PATERNOSTER, CAPITAL PUNISHMENT IN AMERICA at xv (1991) ("[A] substantial number of death sentences continue to be imposed in a fashion that can only be described as 'freakish.'"); WELSH S. WHITE, THE DEATH PENALTY IN THE NINETIES: AN EXAMINATION OF THE MODERN SYSTEM OF CAPITAL PUNISHMENT 207 (1991) (concluding that "the present Court holds that maintaining the smooth functioning of our system of capital punishment is a higher priority than protecting the rights of capital defendants").
14. See, e.g., PATERNOSTER, supra note 8, at 95 (reporting that at the end of September, 1990, 32 of 2393 persons on death row were under the age of 18 at the time of their offenses); EMILY F. REED, THE PENRY PENALTY: CAPITAL PUNISHMENT AND OFFENDERS WITH MENTAL RETARDA-TION 39 (1993) (reporting that while persons with mental retardation make up roughly 2 to 3% of the population and do not commit crimes or murders at higher rates than others, they constitute an estimated 12 to 20% of those under death sentences); Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1840 (1994) ("[A] large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received.").
15. See, e.g., PATERNOSTER, supra note 8, at 95 (reporting that at the end of September, 1990, 32 of 2393 persons on death row were under the age of 18 at the time of their offenses); EMILY F. REED, THE PENRY PENALTY: CAPITAL PUNISHMENT AND OFFENDERS WITH MENTAL RETARDA-TION 39 (1993) (reporting that while persons with mental retardation make up roughly 2 to 3% of the population and do not commit crimes or murders at higher rates than others, they constitute an estimated 12 to 20% of those under death sentences); Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835, 1840 (1994) ("[A] large part of the death row population is made up of people who are distinguished by neither their records nor the circumstances of their crimes, but by their abject poverty, debilitating mental impairments, minimal intelligence, and the poor legal representation they received.").
16. See, e.g., H.R. REP. No. 458, 103d Cong., 2d Sess. 3 (1994) ("There is compelling evidence from certain jurisdictions that the race of the defendant may be a factor governing the imposition of the death sentence."); BALDUS, WOODWORTH & PULASKI, supra note 8, at 400-01 (noting the persistence of race-of-victim discrimination in Georgia, even while race-of-defendant discrimination has been reduced); GROSS & MAURO, supra note 4, at 212 (concluding that "de facto racial discrimination in capital sentencing is legal in the United States").
17. Callins v. Collins, 114 S. Ct. 1127, 1130 (1904) (Blackmun, J., dissenting from denial of certiorari).
18. See Margaret J. Radin, Cruel Punishment and Respect for Persons: Super Due Process for Death, 53 S. CAL. L. REV. 1143 (1980).
19. 390 U.S. 570, 572 (1968) (striking down the capital punishment provisions of the Federal Kidnaping Act on the ground that they burdened the right to trial by making the death penalty available only after a trial by jury). Later cases limited the scope of Jackson. See Parker v. North Carolina, 397 U.S. 790, 794-95 (1970); Brady v. United States, 397 U.S. 742, 746-47 (1970).
20. 391 U.S. 510, 522 (1968) (reversing a death sentence when the state was permitted to strike for cause all jurors having conscientious scruples against the infliction of the death penalty). The Court later limited the scope of Wttherspoon in Wainwright v. Witt, 469 U.S. 412, 424 (1985).
21. See MICHAEL MELTSNER, CRUEL AND UNUSUAL: THE SUPREME COURT AND CAPITAL PUNISHMENT 115-25 (1973) (describing Jackson and Wttherspoon); id. at 124 (documenting the fact that "[a]lmost everyone questioned [about Witherspoon] believed the decision meant the end of capital punishment in the United States").
22. 402 U.S. 183 (1971).
23. 408 U.S. 238 (1972).
24. 428 U.S. 153 (1976).
25. See Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (striking down a statute that provided for a mandatory death penalty in certain circumstances); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (same); Jurek v. Texas, 428 U.S. 262, 276-77 (1976) (upholding a statute that guided sentencer discretion through the use of "special issues"); Proffitt v. Florida, 428 U.S. 242, 259-60 (1976) (upholding a statute that guided sentencer discretion through the use of aggravating and mitigating factors).
26. 438 U.S. 586 (1978).
27. See Barclay v. Florida, 463 U.S. 939, 956-58 (1983) (revisiting Florida's post-Furman statute and upholding a death sentence even though the trial judge considered an aggravating factor not authorized by state law in overriding a jury recommendation for life imprisonment); Barefoot v. Estelle, 463 U.S. 880, 889, 906 (1983) (revisiting Texas's post-Furman statute and upholding the use of summary procedures for appellate review of denials of federal habeas corpus relief); Zant v. Stephens, 462 U.S. 862, 890-91 (1983) (revisiting Georgia's post-Furman statute and upholding a death sentence even though one of the aggravating circumstances found by the sentencing jury was invalid).
28. See Furman v. Georgia, 408 U.S. 238, 411 (1972) (Blackmun, J., dissenting). Only Rhode Island's capital punishment law was left untouched by Furman in 1972, because it was wholly nondiscretionary and thus not invalidated until the Court later rejected mandatory sentencing in 1976.
29. See Fred P. Graham, Supreme Court, 5-4, Bars Death Penalty as It Is Imposed Under Present Statutes, N.Y. TIMES, June 30, 1972, at A1 (two-line banner headline).
30. There are approximately 2500 citations to Furman in Shepard's (through June 1995).
31. See Furman, 408 U.S. at 305 (Brennan, J., concurring); id. at 358-59 (Marshall, J., concurring).
32. See id. at 257 (Douglas, J., concurring); id. at 306 (Stewart, J., concurring); id. at 310-11 (White, J., concurring).
33. Id. at 313 (White, J., concurring).
34. The full name of the Legal Defense Fund U the NAACP Legal Defense and Educational Fund, Inc.
35. MELTSNER, supra note 15, at xi.
36. See id. at 306-09.
37. See, e.g., Gregg v. Georgia, 428 U.S. 153, 195 (1976) (opinion of Stewart, Powell & Stevens, JJ.) ("We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman, for each distinct system must be examined on an individual basis." (footnote omitted)).
38. See Jordan Steiker, The Long Road Up from Barbarism: Thurgood Marshall and the Death Penalty, 71 TEX, L. REV. 1131, 1145 (1993).
39. For example, Justice Scalia's concurrence and Justice Stevens's dissent in Walton v. Arizona, 497 U.S. 639 (1990), each argue directly about the meaning of Furman and Gregg. Compare id. at 656 (Scalia, J., concurring) (arguing that the Furman requirement that sentencer discretion be constrained is inconsistent with doctrine forbidding constraint of sentencer discretion not to impose the death penalty) with id. at 708 (Stevens, J., dissenting) (arguing that under Furman, the sentencer may be given unlimited discretion once the size of the death-eligible class has been sufficiently narrowed). Even more striking is the way in which the majority and dissenting opinions in McCleskey v. Kemp, 481 U.S. 279 (1987), frame themselves around the "[t]wo principal decisions" of Furman and Gregg. Id. at 301.
40. Furman v. Georgia, 408 U.S. 238, 308 n.8 (1972) (Stewart, J., concurring) (quoting GA. CODE ANN. § 26-1302 (Supp. 1971) (effective prior to July 1, 1969)) (internal quotation marks omitted).
41. Id. (quoting TEX. PENAL CODE art. 1189 (1961)).
42. Baugus v. State, 141 So. 2d 264, 266 (Fla.), cert, denied, 371 U.S. 879 (1962).
43. See, e.g., Furman, 408 U.S. at 291 (Brennan, J., concurring) ("The outstanding characteristic of our present practice of punishing criminals by death is the infrequency with which we resort to it."); id. at 309 (Stewart, J., concurring); id. at 311 (White, J., concurring).
44. See Coker v. Georgia, 433 U.S. 584, 592-97 (1977) (plurality opinion) (emphasizing the widespread consensus that the death penalty is excessive for rape in support of a holding that the death sentence is unconstitutional in such cases).
45. See Gregg v. Georgia, 428 U.S. 153, 205-06 (1976) (opinion of Stewart, Powell & Stevens, JJ.); id. at 224 (White, J., joined by Burger, C.J., and Rehnquist, J., concurring in the judgment).
46. See Furman, 408 U.S. at 257 (Douglas, J., concurring) (leaving open the possible constitutionality of a mandatory death penalty); id. at 308 (Stewart, J., concurring) ("[T]he Georgia and Texas Legislatures have not provided that the death penalty shall be imposed upon all those who are found guilty of forcible rape."); id. at 311 (White, J., concurring) ("The narrower question to which I address myself concerns the constitutionality of capital punishment statutes under which ... the legislature does not itself mandate the penalty in any particular class or kind of case.").
47. Id. at 311 (White, J., concurring) (noting that under discretionary capital punishment schemes, "legislative will is not frustrated if the penalty is never imposed"). But ee Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (striking down mandatory capital sentencing schemes under the Eighth Amendment as violative of an overwhelming national consensus in favor of individualized capital sentencing); Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (same).
48. For example, when legislatures set careful standards for determining who "deserves" to die, they obviously reduce overinclusion by establishing a theory of who the worst murderers are, but they also reduce underinclusion by inhibiting opportunities for arbitrary or invidious action by the sentencers who must implement those standards. Similarly, if states carefully circumscribe sentencer discretion in order to ameliorate the problem of arbitrary or discriminatory underinclusion, the ways in which they curb that discretion must necessarily reflect some theory of who deserves to die and thus tend to reduce overinclusion as well.
49. Furman, 408 U.S. at 311 (White, J., concurring).
50. Id. at 249 (Douglas, J., concurring).
51. See id. at 249-53.
52. Id. at 250 (quoting Rupert C. Koeninger, Capital Punishment in Texas, 1914-1968, 15 CRIME & DELINQ. 132, 141 (1969)).
53. Id. (quoting THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 143 (1967)).
54. See id. at 252-53. The race of Furman's murder victim is not apparent from the published opinions in the case.
55. See id. at 255 (quoting Guy B. Johnson, The Negro and Crime, 217 ANNALS AM. ACAD. POL. & Soc. Sci. 93 passim (1941)).
56. Id. at 257. Justices Marshall and Stewart also sounded the "equal protection" theme, see id. at 310 (Stewart, J., concurring); id. at 366 & n.155 (Marshall, J., concurring), but Justice Douglas is the only Justice to have built his entire opinion around this idea.
57. Id. at 256 (Douglas, J., concurring) (footnote omitted).
58. Gregg v. Georgia, 428 U.S. 153, 198 (1976) (plurality opinion) (quoting Coley v. State, 204 S.E.2d 612, 615 (Ga. 1974)).
59. Id.
60. See id. at 204-05 & n.56.
61. Id. at 211-12 (White, J., concurring) (quoting GA. CODE ANN. § 27-2537(a) (Supp. 1975)).
62. See supra note 42 and accompanying text.
63. See Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out?: Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 862-66 (1992) (reviewing BEVERLV LOWRV, CROSSED OVER; A MURDER, A MEMOIR (1992)).
64. See Carol S. Steiker & Jordan M. Steiker, Let God Sort Them Out?: Refining the Individualization Requirement in Capital Sentencing, 102 YALE L.J. 835, 862-66 (1992) (reviewing BEVERLV LOWRV, CROSSED OVER; A MURDER, A MEMOIR (1992)).
65. See Gregg, 428 U.S. at 199 (plurality opinion).
66. 428 U.S. 280 (1976) (plurality opinion).
67. 428 U.S. 325 (1976) (plurality opinion).
68. Id. at 333 (quoting Williams v. New York, 337 U.S. 241, 247 (1949)) (internal quotation marks omitted).
69. Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
70. See Woodson, 428 U.S. at 280-301 (plurality opinion).
71. Id. at 304.
72. Furman v. Georgia, 408 U.S. 238, 270 (1972) (Brennan, J., concurring).
73. See id. at 286-91.
74. See id. at 345-46, 369 (Marshall, J., concurring) (arguing that if members of the public were fully informed, the death penalty would be shocking to their consciences, and that it is therefore unconstitutional in all circumstances).
75. Woodson, 428 U.S. at 305 (plurality opinion).
76. Id. at 304.
77. The mandatory Federal Sentencing Guidelines (and other state mandatory sentencing schemes) abundantly demonstrate this point.
78. Woodson, 428 U.S. at 304 (plurality opinion).
79. See Lowenfield v. Phelps, 484 U.S. 231, 246 (1988).
80. See, e.g., Gregg v. Georgia, 428 U.S. 153, 204-06 (1976) (opinion of Stewart, Powell & Stevens, JJ.) (describing Georgia's proportionality review as a means of assuring that the death penalty is reserved for the most deserving defendants).
81. See, e.g., Coker v. Georgia, 433 U.S. 584, 592 (1977) (holding that the death penalty is grossly disproportionate for the crime of rape).
82. See, e.g., Zant v. Stephens, 462 U.S. 862, 880 n.19 (1983) (describing Georgia's mechanism for proportionality review).
83. Lowenfield, 484 U.S. at 244 (quoting Stephens, 462 U.S. at 877).
84. ARIZ. REV. STAT. ANN. § 13-703(F)(6) (1989).
85. IDAHO CODE § 19-2515(g)(6) (1987).
86. See Arave v. Creech, 113 S. Ct. 1534, 1541 (1993) (sustaining a limiting construction adopted by the Idaho Supreme Court); Walton v. Arizona, 497 U.S. 639, 655 (1990) (concluding "that the challenged factor has been construed by the Arizona courts in a manner that furnishes sufficient guidance to the sentencer").
87. See State v. Gretzler, 659 P.2d 1, 11- 12 (Ariz. 1983), discussed in Walton, 497 U.S. at 694 (Blackmun, J., dissenting).
88. See Walton, 497 U.S, at 695-96 (Blackmun, J., dissenting) (collecting Arizona Supreme Court cases that expanded the circumstances in which a finding of heinousness or depravity could be sustained).
89. State v. Osborn, 631 P.2d 187, 201 (Idaho 1981), discussed in Creech, 113 S. Ct. at 1541.
90. See, e.g., ARIZ. REV. STAT. ANN. § 13-7O3(F) (1989) (listing 10 aggravating circumstances); COLO. REV. STAT. § 16-11-103(5) (Supp. 1994) (listing 13 aggravating circumstances); FLA. STAT. ANN. § 921.141(5) (West Supp. 1995) (listing 11 aggravating circumstances).
91. See, e.g., ARIZ. REV. STAT. ANN. § 13-7O3(F) (1989) (listing 10 aggravating circumstances); COLO. REV. STAT. § 16-11-103(5) (Supp. 1994) (listing 13 aggravating circumstances); FLA. STAT. ANN. § 921.141(5) (West Supp. 1995) (listing 11 aggravating circumstances).
92. See, e.g., ARIZ. REV. STAT. ANN. § 13-7O3(F) (1989) (listing 10 aggravating circumstances); COLO. REV. STAT. § 16-11-103(5) (Supp. 1994) (listing 13 aggravating circumstances); FLA. STAT. ANN. § 921.141(5) (West Supp. 1995) (listing 11 aggravating circumstances).
93. MODEL PENAL CODE § 210.6(3)(h) (1980).
94. See, e.g., Stringer v. Black, 503 U.S. 222 (1992) (addressing the factor in the Mississippi scheme); Maynard v. Cartwright, 486 U.S. 356 (1988) (addressing the factor in the Oklahoma scheme); Henderson v. Dugger, 925 F.2d 1309 (11th Cir. 1991) (addressing the factor in the Florida scheme), cert, denied, 113 S. Ct. 621 (1992).
95. See, e.g., ALA. CODE § 13A-s-40(a) (Supp. 1994) (enumerating 18 kinds of capital murder); UTAH CODE ANN. § 76-5-202(1) (Supp. 1995) (enumerating 17 kinds of capital murder).
96. See, e.g., ALA. CODE § 13A-s-40(a) (Supp. 1994) (enumerating 18 kinds of capital murder); UTAH CODE ANN. § 76-5-202(1) (Supp. 1995) (enumerating 17 kinds of capital murder).
97. See BALDUS, WOODWORTH & PULASKI, supra note 8, at 268 n.31. The Baldus study is discussed in Daniel Givelber, The New Law of Murder, 69 IND, L.J. 375, 413-16 (1994).
98. See BALDUS, WOODWORTH & PULASKI, supra note 8, at 102.
99. See id. at 102-03.
100. See, e.g., Furman v. Georgia, 408 U.S. 238, 291 (1972) (Brennan, J., concurring); id. at 309 (Stewart, J., concurring); id. at 311 (White, J., concurring).
101. 433 U.S. 584 (1977).
102. See id. at 597.
103. See MELTSNER, supra note 15, at 74-78 (discussing statistical data regarding the disproportionate charging and sentencing of African-American men who had allegedly raped white women).
104. See Rudolph v. Alabama, 375 U.S. 889, 889-91 (1963) (Goldberg, J., dissenting from denial of certiorari).
105. See id. Somewhat surprisingly, the Court did not mention race in its decision in Coker either.
106. See id.
107. The two companion cases to Furman - Jackson v. Georgia, No. 69-5030, and Branch v. Texas, No. 69-5031 - involved interracial rapes. See Jackson v. Stale, 171 S.E.2d 501, 504 (Ga. 1969) (rejecting defendant's claim that "there exists a discriminatory pattern whereby the death penalty is consistently imposed upon Negro defendants convicted of raping white women" (internal quotation marks omitted)); Branch v. State, 447 S.W.2d 932, 934 (Tex. Crim. App. 1969) (identifying "Negro defendant" and "Caucasian complaining witness").
108. See Enmund v. Florida, 458 U.S. 782, 797 (1982).
109. See Tison v. Arizona, 481 U.S. 137, 158 (1987).
110. See 1994 DEATH Row U.S.A. REPORTER CURRENT SERVICE (NAACP Legal Defense and Educ. Fund, Inc.), Summer 1994, at 648-52 (indicating that states have executed 10 non-triggermen since 1977).
111. See Enmund, 458 U.S. at 789-92 (discussing state statutes, most of which remain in force).
112. 492 U.S. 361 (1989).
113. See id. at 380.
114. See id. at 373-74.
115. See id. at 374-75 (plurality opinion).
116. See Penry v. Lynaugh, 492 U.S. 302, 335 (1989).
117. See id. at 322-23.
118. Id. at 338 (opinion of O'Connor, J.).
119. 402 U.S. 183 (1971).
120. See id. at 204-08.
121. See, e.g., Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell & Stevens, JJ.) ("Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.").
122. 446 U.S. 420 (1980) (plurality opinion).
123. Id. at 422 (citing GA. CODE § 27-2534.1(b)(7) (1978)).
124. Id. at 427 (quoting Gregg, 428 U.S. at 188 (quoting Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring)) (internal quotation marks omitted)).
125. The lead opinion in Godfrey is technically a plurality opinion (joined by four Justices), as Justices Marshall and Brennan concurred only in the judgment. See id. at 433 (Marshall, J., concurring in the judgment).
126. Godfrey, 446 U.S. at 428-29.
127. Id. at 428 (quoting, respectively, Gregg, 428 U.S. at 198 (quoting Coley v. State, 204 S.E.2d 612, 615 (Ga. 1974)); Proffitt v. Florida, 428 U.S. 242, 253 (1976); and Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (opinion of Stewart, Powell & Stevens, JJ.)).
128. Id. (quoting Gregg, 428 U.S. at 195 n.46).
129. 462 U.S. 862 (1983).
130. See id. at 864.
131. See id. at 885.
132. See id. at 870 n.11 (describing the certified question).
133. See Zant v. Stephens, 297 S.E.2d 1, 3 (Ga. 1982) (opinion answering the question certified by the U.S. Supreme Court).
134. See id.
135. Id. at 4.
136. See Stephens, 462 U.S. at 875 ("For the Court [in Gregg] approved Georgia's capital sentencing statute even though it clearly did not channel the jury's discretion by enunciating specific standards to guide the jury's consideration of aggravating and mitigating circumstances.").
137. Id. at 877.
138. See Steiker & Steiker, supra note 57, at 863 & n.141 (citing Brief Amici Curiae of the NAACP Legal Defense and Educational Fund, Inc., and the National Office for the Rights of the Indigent at 13-14, McGautha v. California, 402 U.S. 183 (1971) (No. 71-203) (describing the problem of underinclusion)). Of course, there is an important connection between underinclusion and overinclusion: underinclusive application of the death penalty may be strong evidence of overinclusiveness, because the fact that the state selects only a few out of many eligible to bear a burden often reveals that the state's purported interest in imposing the burden is illusory. See id. at 863 n.140.
139. Id. at 863 (footnote omitted).
140. 428 U.S. 280 (1976) (plurality opinion).
141. See id. at 304.
142. See infra pp. 390-91 (discussing the individualization requirement).
143. See Graham v. Collins, 113 S. Ct. 892, 912 (1993) (Thomas, J., concurring) (arguing that courts have pushed the individualization requirement too far given that "the power to be lenient [also] is the power to discriminate" (quoting McCleskey v. Kemp, 481 U.S. 279, 312 (1987) (quoting KENNETH C. DAVIS, DISCRETIONARY JUSTICE 170 (1973))) (internal quotation marks omitted)); Walton v. Arizona, 497 U.S. 639, 670-73 (1990) (Scalia, J., concurring) (maintaining that because the channeling concerns of Furman aie "arguably supported" by the text of the Constitution, whereas the concern for individualized capital sentencing bears "no relation whatever" to the Eighth Amendment, the individualization requirement should be abandoned).
144. See Callins v. Collins, 114 S. Ct. 1127, 1136 (1994) (Blackmun, J., dissenting from denial of certiorari) ("All efforts to strike an appropriate balance between these conflicting constitutional commands are futile because there is a heightened need for both in the administration of death.").
145. Gregg v. Georgia, 428 U.S. 153, 211 (1976) (White, J., concurring) (quoting GA. CODE ANN. § 27-2534.1(b) (Supp. 1975)) (internal quotation marks omitted).
146. See Zant v. Stephens, 462 U.S. 862, 890 (1983).
147. See id.
148. Stephens v. State, 227 S.E.2d 261, 263 (Ga. 1976).
149. 465 U.S. 37 (1984).
150. See id. at 44-50.
151. 428 U.S. 202 (1976).
152. See Pulley, 465 U.S. at 48.
153. Id. at 53.
154. See id. at 51 n.13.
155. See CAL. PENAL CODE § 190.2(13) (West 1995) (concerning appointed officials); id. § 190.2(17)(ix) (concerning murders in the course of a train wrecking).
156. The Court has indicated that both the Texas and Louisiana schemes adequately narrow the class of the death-eligible in their definitions of capital murder. See Lowenfield v. Phelps, 484 U.S. 231, 245-46 (1988).
157. Cases in which the Court has addressed the constitutional adequacy of states' efforts to guide sentencer discretion include: Arave v. Creech, 113 S. Ct. 1534, 1538 (1993); Espinosa v. Florida, 112 S. Ct. 2926, 2929 (1992) (per curiam); Sochor v. Florida, 504 U.S. 527, 529-30 (1992); Stringer v. Black, 503 U.S. 222, 228-29 (1992); Lewis v. Jeffers, 497 U.S. 764, 789 (1990); Walton v. Arizona, 497 U.S. 639, 652-53 (1990); Clemons v. Mississippi, 494 U.S. 738, 741 (1990); Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988); Lowenfield v. Phelps, 484 U.S. 231, 245-46 (1988); Barclay v. Florida, 463 U.S. 939, 956-58 (1983): Zant v. Stephens, 462 U.S. 862, 864 (1983); and Godfrey v. Georgia, 446 U.S. 420, 428 (1980).
158. See Godfrey, 446 U.S. at 426 (reversing a sentencing decision that rested solely on the aggravating circumstance "that the offense of murder was outrageously or wantonly vile, horrible and inhuman").
159. 462 U.S. 862 (1983).
160. See, e.g., id. at 864; Clemons v. Mississippi, 494 U.S. 738, 742 (1990) (reviewing a case in which the sentencer considered one permissible aggravating circumstance - that the murder was committed during the course of a robbery - and one impermissibly vague aggravating circumstance - that the killing was "especially heinous, atrocious or cruel"); Barclay v. Florida, 463 U.S. 939, 944-46 (1983) (involving sentencer consideration of valid aggravating circumstances, including that the defendant had committed the murder while engaged in a kidnapping, as well as a non-statutory aggravating circumstance that was improper under state law).
161. But cf. Tuggle v. Netherland, 116 S. Ct. 283 (1995) (per curiam) (holding that constitutional error that prevented the defendant from responding to a non-vague aggravating circumstance argued by the prosecution required reversal of the defendant's death sentence despite the presence of an additional aggravating factor found by the jury).
162. See, e.g., Clemons, 494 U.S. at 754 (holding that states with "weighing" schemes must "engage in reweighing or harmless-error analysis when errors have occurred in a capital sentencing proceeding" if the sentence is to be sustained).
163. The difference appears to rest on the belief that sentences in non-weighing states will place no special emphasis on the aggravating circumstances that they have found in determining the ultimate sentence; once a defendant has become death-eligible, the sentencer is "cut loose" from those circumstances and has absolute discretion to decide between life and death. It seems likely, though, that even in self-described "non-weighing" states, most sentencers will approach their decision by considering the extent to which aggravating factors outweigh mitigating factors. Once the sentencer has been instructed to think about the appropriate punishment in terms of aggravating and mitigating circumstances, the decisionmaking process seems inevitably driven to some sort of balancing or weighing. Indeed, in fashioning its doctrinal approach, the Court has offered no clear statement concerning its view of how decisionmaking could proceed in non-weighing states apart from some sort of makeshift balancing or weighing. A critical examination of the Court's doctrine in this area is offered in Stephen Hornbuckle, Note, Capital Sentencing Procedure: A Lethal Oddity in the Supreme Court's Case Law, 73 TEX. L. REV. 441, 455-57 (1994).
164. Of the 36 death penalty jurisdictions, 21 are weighing states. See id. at 448 n.38 (listing weighing states and their corresponding statutory provisions).
165. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
166. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
167. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
168. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
169. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
170. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to
171. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
172. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
173. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
174. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
175. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
176. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
177. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
178. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
179. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
180. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
181. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
182. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
183. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it
184. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
185. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
186. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
187. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
188. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
189. In some cases, the Court has upheld the use of a general factor for "heinous, atrocious, or cruel" crimes when those terms have been narrowed by either state courts or legislatures. Nonetheless, the retention of such language by many states invites litigation. State statutes that still contain vague aggravating factors include: ALA. CODE § 13A-5-49(8) (1994) ("capital offense was especially heinous, atrocious or cruel compared to other capital offenses"); ARIZ. REV. STAT. ANN. § 13-703(F)(6) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); ARK. CODE ANN. § 5-4-604(8) (Michie 1993) ("capital murder was committed in an especially cruel or depraved manner," which includes those offenses in which torture is inflicted on the victim or in which the defendant "relishes" the murder); CAL. PENAL CODE § 190.2(a)(14) (West Supp. 1995) ("murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity," which is defined as a "conscienceless, or pitiless crime which is unnecessarily torturous to the victim"); COLO. REV. STAT. § 16-11-103(5)(j) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel, or depraved manner"); CONN. GEN. STAT. § 53a46a(h)(4) (1995) ("defendant committed the offense in an especially heinous, cruel or depraved manner"); DEL. CODE ANN. tit. 11, § 4209(e)(1)(l) (Supp. 1994) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, use of an explosive device or poison or the defendant used such means on the victim prior to murdering him"); FLA. STAT. ch. 921.141(5)(h) (1993) ("capital felony was especially heinous, atrocious, or cruel"); GA. CODE ANN. § 17-10-30(b)(7) (1990) ("offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); IDAHO CODE § 19-2515(g)(5) (Supp. 1995) ("murder was especially heinous, atrocious or cruel, manifesting exceptional depravity"); ILL. COMP. STAT. ANN. ch. 720, para. 5/9-1(b)(7) (West 1994) ("murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty"); KAN. STAT. ANN. § 21-4625(6) (Supp. 1994) ("defendant committed the crime in an especially heinous, atrocious or cruel manner"); LA. CODE CRJM. PROC. ANN. art. 905.4(A)(7) (West Supp. 1995) ("offense was committed in an especially heinous, atrocious or cruel manner"); Miss. CODE ANN. § 99-19-101(5)(h) (1994) ("capital offense was especially heinous, atrocious or cruel"); Mo. REV. STAT. § 565.032(2)(7) (1994) ("murder in the first degree was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind"); NEB. REV. STAT. § 29-2523(1)(d) (1989) ("murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence"); NEV. REV. STAT. § 200.033(8) (1991) ("murder involved torture, depravity of mind or the mutilation of the victim"); N.H. REV. STAT. ANN. § 630:5(VII)(h) (Supp. 1994) ("defendant committed the offense in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim"); N.J. STAT. ANN. § 2C:11-3(c)(4)(C) (West 1995) ("murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim"); N.C. GEN. STAT. § 15A-2000(e)(9) (Supp. 1994) ("capital felony was especially heinous, atrocious, or cruel"); OKLA. STAT. tit. 21, § 701.12(4) (1991) ("murder was especially heinous, atrocious, or cruel"); S.D. CODIFIED LAWS ANN. § 23A-27A-1(6) (Supp. 1995) ("offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"); TENN. CODE ANN. § 39-13-204(1)(5) (Supp. 1994) ("murder was especially heinous, atrocious, or cruel in that it involved torture or serious physical abuse beyond that necessary to produce death"); UTAH CODE ANN. § 76-5-202(1)(q) (1995) ("homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death"); VA. CODE ANN.
190. GA. CODE ANN. § 17-10-30(b)(7) (1990); see Godfrey v. Georgia, 446 U.S. 420, 431-33 (1980) (sustaining a challenge to this aggravating circumstance as applied by state courts).
191. OKLA. STAT. tit. 21, § 701.12(4) (1991); see Maynard v. Cartwright, 486 U.S. 356, 363-65 (1988) (sustaining a challenge to this aggravating circumstance as applied by state courts).
192. IDAHO CODE § 19-2515(g)(6) (Supp. 1995); see Arave v. Creech, 113 S. Ct. 1534, 1541 (1993) (upholding the statute against a vagueness challenge on the ground that the aggravating circumstance as interpreted by state courts focused on a factual determination of defendant's state of mind rather than on a "subjective determination" (quoting Creech v. Arave, 947 F.2d 873, 884 (9th Cir. 1991)) (internal quotation marks omitted)).
193. Of course, much of the current litigation involves the review of sentences rendered before some states ceased using patently invalid aggravating circumstances. To the extent that existing litigation falls within this category, it does not reflect pervasive regulation of state capital schemes as much as the enforcement of one easily met (though perhaps belatedly discovered) constitutional requirement Other litigation, though, involves state efforts to save facially vague aggravating circumstances through judicially applied limiting constructions. In such states, the continued use of problematic factors absolutely invites future litigation and likewise cannot be said to reflect significant court intrusion into state capital schemes. As early as 1973, a report prepared by the National Association of Attorneys General evaluated various "aggravating factors" and designated as "poor" in terms of likely court approval the "heinous, atrocious, or cruel" factor that ultimately generated an extraordinary amount of litigation. See NATIONAL ASS'N OF ATTORNEYS GEN., SUMMARY OF PROCEEDINGS 61 (1973).
194. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 303-04 (1976) (plurality opinion).
195. See, e.g., Act of Mar. 28, 1973, No. 74, sec. 3, § 27-2534.1(b), 1973 Ga. Laws 157, 163-65 (codified at GA. CODE ANN. § 17-10-30(b) (1990)); Act of Aug. 5, 1976, No. 694, 1976 La. Acts 1771 (current version at LA. CODE CRIM. PROC. ANN. arts. 905-905.9 (West 1984 & Supp. 1995)); Act of Mar. 29, 1977, ch. 492, art. 4.1, §§ 19.2-264.2 to .4, 1977 Va. Acts 733, 735 (current version at VA. CODE ANN. §§ 19.2-264.2 to -264.5) (Michie 1995)).
196. See, e.g., Act of Mar. 28, 1973, No. 74, sec. 3, § 27-2534.1(b), 1973 Ga. Laws 157, 163-65 (codified at GA. CODE ANN. § 17-10-30(b) (1990)); Act of Aug. 5, 1976, No. 694, 1976 La. Acts 1771 (current version at LA. CODE CRIM. PROC. ANN. arts. 905-905.9 (West 1984 & Supp. 1995)); Act of Mar. 29, 1977, ch. 492, art. 4.1, §§ 19.2-264.2 to .4, 1977 Va. Acts 733, 735 (current version at VA. CODE ANN. §§ 19.2-264.2 to -264.5) (Michie 1995)).
197. See, e.g., Act of Mar. 28, 1973, No. 74, sec. 3, § 27-2534.1(b), 1973 Ga. Laws 157, 163-65 (codified at GA. CODE ANN. § 17-10-30(b) (1990)); Act of Aug. 5, 1976, No. 694, 1976 La. Acts 1771 (current version at LA. CODE CRIM. PROC. ANN. arts. 905-905.9 (West 1984 & Supp. 1995)); Act of Mar. 29, 1977, ch. 492, art. 4.1, §§ 19.2-264.2 to .4, 1977 Va. Acts 733, 735 (current version at VA. CODE ANN. §§ 19.2-264.2 to -264.5) (Michie 1995)).
198. See OR. REV. STAT. §163.150(b) (1990); Act of June 14, 1973, ch. 426, art. 37.071(0), 1973 Tex. Gen. Laws 1122, 1125 (current version at TEX. CODE CRIM. PROC. ANN. art. 37.071(2)(e) (West Supp. 1995)).
199. See OR. REV. STAT. §163.150(b) (1990); Act of June 14, 1973, ch. 426, art. 37.071(0), 1973 Tex. Gen. Laws 1122, 1125 (current version at TEX. CODE CRIM. PROC. ANN. art. 37.071(2)(e) (West Supp. 1995)).
200. 428 U.S. 280 (1976).
201. 428 U.S. 325 (1976).
202. See Roberts, 428 U.S. at 336; Woodson, 428 U.S. at 305.
203. 438 U.S. 586 (1978).
204. See id. at 608.
205. Id.
206. See Eddings v. Oklahoma, 455 U.S. 104, 112-15 (1982). The trial judge refused to consider such mitigating evidence, notwithstanding the broad language of the Oklahoma statute, which authorized the sentencer to consider "any mitigating circumstances." Id. at 115 n.10 (quoting OKLA. STAT. tit. 21, § 701.10 (1980)).
207. See Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986).
208. See, e.g., Boyde v. California, 494 U.S. 370, 382 n.5 (1990) (expressing doubts about the mitigating significance of the prize for dance choreography that the defendant won while in prison).
209. See Steiker & Steiker, supra note 57, at 858-59.
210. Brief Amici Curiae of the NAACP Legal Defense and Educ. Fund, Inc. and the National Office for the Rights of the Indigent at 69, McGautha v. California, 402 U.S. 183 (1971) (No. 71-203), quoted in Steiker & Steiker, supra note 57, at 864.
211. See Proffitt v. Florida, 428 U.S. 242, 250-60 (1976) (plurality opinion).
212. See Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987).
213. Lockett v. Ohio, 438 U.S. 586, 606 (1978).
214. Nowhere in Proffitt, the 1976 decision concerning the Florida statute, did the Court insist that the state courts construe the statute so as to permit consideration of unenumerated mitigating circumstances. In a footnote in the plurality opinion, three Justices observed that the statute did not appear to limit sentencer consideration to statutory mitigating factors. See Proffitt, 428 U.S. at 250 n.8 (opinion of Stewart, Powell & Stevens, JJ.). But this observation seems unconnected to any claim that such open-ended consideration of mitigating factors was constitutionally required.
215. See Capital Punishment 1993, in JAMES STEPHAN & PETER BRIEN, DEP'T OF JUSTICE, CAPITAL PUNISHMENT 1993, at 11 tbl.10 (1994) (reporting that Florida has ranked second in number of executions since 1977); see also id. et 1 (reporting that as of December, 1993, Florida ranked third in number of prisoners under sentence of death).
216. See OR. REV. STAT. § 163.150(1)(b) (1993); Act of June 14, 1973. ch. 426, Art. 3, sec.1, art 37.o71(a)-(b), 1973 Tex. Gen. Laws 1122, 1125 (current version at TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon Supp. 1995)).
217. See OR. REV. STAT. § 163.150(1)(b) (1993); Act of June 14, 1973. ch. 426, Art. 3, sec.1, art 37.o71(a)-(b), 1973 Tex. Gen. Laws 1122, 1125 (current version at TEX. CODE CRIM. PROC. ANN. art. 37.071 (Vernon Supp. 1995)).
218. See, e.g., Jurek v. Texas, 428 U.S. 262, 271-72 & n.7, 276 (1976).
219. See Franklin v. Lynaugh, 487 U.S. 164, 185 (1988) (O'Connor, J., concurring in the judgment). Justice O'Connor noted: If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its "reasoned moral response" to that evidence. Id.
220. 492 U.S. 302 (1989).
221. See id. at 328.
222. See id. at 324.
223. See Steiker, supra note 32, at 1150.
224. Act of June 16, 1991, ch. 838, sec. 1, art. 37.071(e), 1991 Tex. Gen. Laws, 2898, 2899 (codified at TEX. CODE CRIM. PROC. ANN. art. 37.071(6) (Vernon Supp. 1995)) mandated the following additional special issue that focuses on mitigating evidence: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. Oregon had already revised its statute, adding as its fourth question: "Whether a sentence of death be imposed." Act of July 24, 1989, ch. 790, sec. 135b, § 163.150(1)(b)(D), 1989 Or. Laws 1301, 1327 ( current version at OR. REV. STAT. § 163.150(1)(b)(D) (1993)).
225. Act of June 16, 1991, ch. 838, sec. 1, art. 37.071(e), 1991 Tex. Gen. Laws, 2898, 2899 (codified at TEX. CODE CRIM. PROC. ANN. art. 37.071(6) (Vernon Supp. 1995)) mandated the following additional special issue that focuses on mitigating evidence: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. Oregon had already revised its statute, adding as its fourth question: "Whether a sentence of death be imposed." Act of July 24, 1989, ch. 790, sec. 135b, § 163.150(1)(b)(D), 1989 Or. Laws 1301, 1327 ( current version at OR. REV. STAT. § 163.150(1)(b)(D) (1993)).
226. For representative decisions in the Texas courts, see Kemp v. State, 846 S.W.2d 289, 310 (Tex. Crim. App. 1992) (refusing to extend Penry to encompass mitigating evidence relating solely to a defendant's youth), cert denied, 113 S. Ct. 2361 (1993); Nobles v. State, 843 S.W.2d 503, 506 (Tex. Crim. App. 1992) (holding that defendant's childhood abuse could be adequately addressed within the Texas special issues and therefore did not merit a special jury charge as in Penry); and Cantu v. State, 842 S.W.2d 667, 693 (Tex. Crim. App. 1992) (holding that a twenty-year-old defendant was not entitled to a Penry instruction based upon youth as a mitigating factor), cert, denied, 113 S. Ct. 3046 (1993). For federal decisions, see Drew v. Collins, 964 F.2d 411, 420-21 (5th Cir. 1992) (rejecting a Penry claim based upon defendant's youth and troubled childhood), cert, denied, 113 S. Ct. 3044 (1993); Bridge v. Collins, 963 F.2d 767, 770 (5th Cir. 1992) (holding that because the defendant's youth could be taken into account under the question of "future dangerousness" in Texas's capital punishment scheme, the defendant was not entitled to a special Penry instruction), cert, denied, 113 S. Ct. 3044 (1993); White v. Collins, 959 F.2d 1319, 1324 (5th Cir.) (holding that Texas's first and second statutory punishment issues offered "a constitutionally adequate vehicle by which the jury could give mitigating effect to [a defendant's] age"), cert. denied, 503 U.S. 1001 (1992); and Barnard v. Collins, 958 F.2d 634, 639 (5th Cir. 1992) (stating that a defendant must show that his difficult childhood experiences had a psychological effect upon him before they could be invoked in support of Penry relief), cert, denied, 113 S. Ct. 990 (1993).
227. See Johnson v. Texas, 113 S. Ct. 2658 (1993); Graham v. Collins, 113 S. Ct. 892 (1993).
228. See Graham, 113 S. Ct. at 903.
229. See Teague v. Lane, 489 U.S. 288, 310 (1989) (narrowing the applicability of "new" law on federal habeas).
230. See Graham, 113 S. Ct. at 902-03.
231. Johnson, 113 S. Ct at 2669.
232. See Johnson v. Texas, 113 S. Ct. 2658 (1993); Graham v. Collins, 113 S. Ct. 892 (1993); Penry v. Lynaugh, 492 U.S. 302 (1989); Franklin v. Lynaugh, 487 U.S. 164 (1988).
233. The Fifth Circuit has granted relief under Penry in only one case. See Mayo v. Lynaugh, 893 F.zd 683, 684 (sth Cir. 1990), cert, denied, 502 U.S. 898 (1991). For an illustrative collection of cases in which the Fifth Circuit has rejected Penry claims, see Allridge v. Scott, 41 F.3d 213, 222-23 (sth Cir. 1994) (concluding that petitioner's evidence regarding parole ineligibility, mental illness, and previous abuse could be adequately considered pursuant to the special issue scheme), cert, denied, 115 S. Ct. 1959 (1995); Jacobs v. Scott, 31 F.3d 1319, 1326-28 (5th Cir. 1994) (hold-ing that the special issues regarding deliberateness and future dangerousness permitted jurors to give adequate mitigating effect to petitioner's non-triggerman status, his troubled childhood, and his positive personality traits), cert, denied, 115 S. Ct. 711 (1995); Lackey v. Scott, 28 F.3d 486, 488-90 (5th Cir. 1994) (rejecting petitioner's Penry claims based upon his intoxication at the time of the offense, his drinking problem, his low intelligence, and his childhood abuse), cert, denied, 115 S. Ct. 743 (1995); Madden v. Collins, 18 F.jd 304, 306-08 (sth Cir. 1994) (rejecting a Penry claim based upon petitioner's personality disorder, learning disability and troubled childhood be-cause such information was not "constitutionally relevant mitigating evidence" (emphasis omit-ted)), cert, denied, 115 S. Ct 1114 (1995); and Russell v. Collins, 998 F.2d 1287, 1291-93 (sth Cir. 1993) (denying Penry relief in a case in which the sentencing jury heard evidence of petitioner's troubled childhood and severe beating suffered as a teenager), cert, denied, 114 S. Ct. 1236 (1994).
234. See, e.g., Selvage v. Lynaugh, 842 F.2d 89, 93-94 (sth Cir. 1988) (applying procedural de-fault doctrine to an unpreserved Penry claim),• Black v. State, 816 S.W.2d 350, 364 (Tex. Crim. App. 199:) (dispensing with the procedural default bar to Penry claims), cert, denied, 504 U.S. 992 (1992).
235. See, e.g., Motley v. Collins, 18 F.3d 1223, 1234-35 (sth Cir.) (applying the nonretroactivity bar to a Penry claim based on severe abuse), cert, denied, 115 S. Ct. 418 (1994).
236. See, e.g., Marquez v. Collins, 11 F.3d 1241, 1248 (sth Cir.) (rejecting a claim that the statu-tory scheme unconstitutionally interfered with counsel's decision whether to present mitigating evidence at a capital trial), cert, denied, 115 S. Ct. 215 (1994).
237. See, e.g., id. at 1248 (rejecting a Penry claim based on failure to present evidence of retar-dation at trial); Barnard v. Collins, 958 F.2d 634, 637, 639 (sth Cir. 1992) (rejecting a non-record Penry claim), cert, denied, 113 S. Ct. 990 (1993); May v. Collins, 904 F.2d 228, 232 (sth Cir. 1990) (requiring introduction of mitigating evidence at trial to preserve a Penry claim), cert, denied, 498 U.S. 1055 (1991).
238. See supra pp. 370-71.
239. See Türner v. Murray, 476 U.S. 28, 37 (1986).
240. See Gardner v. Florida, 430 U.S. 349, 357-62 (1977).
241. See Caldwell v. Mississippi, 472 U.S. 320, 328-30 (1985).
242. See Beck v. Alabama, 447 U.S. 625, 637-38 (1980).
243. See Simmons v. South Carolina, 114 S. Ct. 2187, 2193-94 (1994).
244. See Johnson v. Mississippi, 486 U.S. 578, 584-87 (1988).
245. See Herrera v. Collins, 113 S. CL 853, 869 (1993).
246. See supra pp. 389-91.
247. Simmons, 114 S. Ct. at 2205 (Scalia, J., dissenting).
248. See Strickland v. Washington, 466 U.S. 668, 686-87 (1984).
249. See id. at 689.
250. See Emanuel Margolis, Habeas Corpus: The No-Longer Great Writ, 98 DICK. L. REV. 557, 602- 09 (i9Q4) (citing inadequate, inexperienced trial counsel in death penalty cases as the main reason for the large number of federal habeas corpus petitions that are filed each year); Ira P. Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, 40 AM. U. L. REV. r, 14-27 (1990) (reporting the American Bar Association's recommendations for improved death penalty litigation based upon a finding that current trial representation is inade-quate); Ronald J. Tabak & J. Mark Lane, Judicial Activism and Legislative "Reform" of Federal Habeas Corpus: A Critical Analysis of Recent Developments and Current Proposals, 55 ALB. L. REV. i, 29-35 (1991) (discussing several factors that contribute to poor representation in capital trials, including statutory ceilings on the fees awarded to capital trial attorneys, limited state fund-ing available for expert witnesses and investigators, and the appointment of counsel who are unable to handle complicated death penalty cases); Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capitol Trials, 107 HARV. L. REV. 1923, 1924-25 (1994) (criticizing the quality of representation provided to death penalty defendants and explaining that the problem is particularly acute in the Southern states, which are often referred to as the "death belt").
251. See Emanuel Margolis, Habeas Corpus: The No-Longer Great Writ, 98 DICK. L. REV. 557, 602- 09 (i9Q4) (citing inadequate, inexperienced trial counsel in death penalty cases as the main reason for the large number of federal habeas corpus petitions that are filed each year); Ira P. Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, 40 AM. U. L. REV. r, 14-27 (1990) (reporting the American Bar Association's recommendations for improved death penalty litigation based upon a finding that current trial representation is inade-quate); Ronald J. Tabak & J. Mark Lane, Judicial Activism and Legislative "Reform" of Federal Habeas Corpus: A Critical Analysis of Recent Developments and Current Proposals, 55 ALB. L. REV. i, 29-35 (1991) (discussing several factors that contribute to poor representation in capital trials, including statutory ceilings on the fees awarded to capital trial attorneys, limited state fund-ing available for expert witnesses and investigators, and the appointment of counsel who are unable to handle complicated death penalty cases); Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capitol Trials, 107 HARV. L. REV. 1923, 1924-25 (1994) (criticizing the quality of representation provided to death penalty defendants and explaining that the problem is particularly acute in the Southern states, which are often referred to as the "death belt").
252. See Emanuel Margolis, Habeas Corpus: The No-Longer Great Writ, 98 DICK. L. REV. 557, 602- 09 (i9Q4) (citing inadequate, inexperienced trial counsel in death penalty cases as the main reason for the large number of federal habeas corpus petitions that are filed each year); Ira P. Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, 40 AM. U. L. REV. r, 14-27 (1990) (reporting the American Bar Association's recommendations for improved death penalty litigation based upon a finding that current trial representation is inade-quate); Ronald J. Tabak & J. Mark Lane, Judicial Activism and Legislative "Reform" of Federal Habeas Corpus: A Critical Analysis of Recent Developments and Current Proposals, 55 ALB. L. REV. 1, 29-35 (1991) (discussing several factors that contribute to poor representation in capital trials, including statutory ceilings on the fees awarded to capital trial attorneys, limited state fund-ing available for expert witnesses and investigators, and the appointment of counsel who are unable to handle complicated death penalty cases); Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capitol Trials, 107 HARV. L. REV. 1923, 1924-25 (1994) (criticizing the quality of representation provided to death penalty defendants and explaining that the problem is particularly acute in the Southern states, which are often referred to as the "death belt").
253. See Emanuel Margolis, Habeas Corpus: The No-Longer Great Writ, 98 DICK. L. REV. 557, 602- 09 (i9Q4) (citing inadequate, inexperienced trial counsel in death penalty cases as the main reason for the large number of federal habeas corpus petitions that are filed each year); Ira P. Robbins, Toward a More Just and Effective System of Review in State Death Penalty Cases, 40 AM. U. L. REV. r, 14-27 (1990) (reporting the American Bar Association's recommendations for improved death penalty litigation based upon a finding that current trial representation is inade-quate); Ronald J. Tabak & J. Mark Lane, Judicial Activism and Legislative "Reform" of Federal Habeas Corpus: A Critical Analysis of Recent Developments and Current Proposals, 55 ALB. L. REV. 1, 29-35 (1991) (discussing several factors that contribute to poor representation in capital trials, including statutory ceilings on the fees awarded to capital trial attorneys, limited state fund-ing available for expert witnesses and investigators, and the appointment of counsel who are unable to handle complicated death penalty cases); Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capitol Trials, 107 HARV. L. REV. 1923, 1924-25 (1994) (criticizing the quality of representation provided to death penalty defendants and explaining that the problem is particularly acute in the Southern states, which are often referred to as the "death belt").
254. See Bright, supra note 9, at 1845-47.
255. Strickland, 466 U.S. at 689.
256. Bright's article documents numerous cases in which the adversary process broke down, including cases in which defense counsel referred to their clients by racial slurs, slept through triai, were intoxicated at trial, or filed appeal briefs that contained less than five pages of argu-ment. See Bright, supra note 9, at 1843 & nn.51-55.
257. See supra pp. 367-68.
258. See, e.g., Marcia Coyle, Fred Strasser & Marianne Lavelle, Fatal Defense: Trial and Error in the Nation's Death Belt, NAT'L L.J., June n, 1990, at 30 (concluding that results in capital trials in six Southern states are "more like the random flip of a coin than a delicate balancing of the scales"); see also Bright, supra note 9, at 1841-42 & nn.47-4« (citing studies of representation in capital cases).
259. The sole exception appears to be the Court's apparent recognition of "actual innocence" claims in which a capital defendant makes a "truly persuasive" showing that he is actually inno-cent of the underlying offense. Herrera v. Collins, 113 S. Ct. 853, 869 (1993).
260. See Murray v. Giarratano, 492 U.S. i, 13 (1989) (O'Connor, J., concurring); Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987).
261. See Murray, 492 U.S. at 13 (O'Connor, J., concurring); Finley, 481 U.S. at 555.
262. See Coleman v. Thompson, in S. Ct. 2546, 2S6S (1991); Wainwright v. Sykes, 433 U.S. 72, 86-90 (1977).
263. See Kuhlmann v. Wilson, 477 U.S. 436, 452-54 (1986) (plurality opinion).
264. See McCleskey v. Zant, in S. Ct 1454, 1470 (1991).
265. See Teague v. Lane, 489 U.S. 288, 309-10 (1989) (plurality opinion).
266. See BALDUS, WOODWORTH & PULASKI, supra note 8, at 185.
267. See, e.g., GROSS & MAURO, supra note 4, at 69 (finding that "the killing of a white victim increased the odds of a death sentence by an estimated factor of 4 in Illinois, about 5 in Florida, and about 7 in Georgia").
268. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 299 (1987); Wainwright v. Adams, 466 U.S. 964, 964-66 (1984) (Marshall, J., dissenting) (objecting to the lifting of the stay of execution of an inmate challenging race discrimination in sentencing).
269. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Washington v. Davis, 426 U.S. 229, 239 (1976).
270. 481 U.S. 279 (1987).
271. See id. at 297 f[W]e hold that the Baldus study is clearly insufficient to support an infer-ence that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.").
272. Id. at 314-15. The court noted that there were already studies "allegedly" demonstrating racial disparities in sentencing. See id. at 315 n.jS.
273. Id.
274. The Court emphasized the "sameness" of the death penalty in its concluding paragraphs: "The Constitution does not require that a State eliminate any demonstrable disparity that corre-lates with a potentially irrelevant factor in order to operate a criminal justice system thai includes capital punishment." Id. at 319 (emphasis added).
275. Id. (quoting Gregg v. Georgia, 428 U.S. 153, 199 n.$o (1976) (plurality opinion)) (internal quotation marks omitted).
276. Simmons v. South Carolina, 114 S. Ct 2187, 2205 (1994) (Scalia, J., dissenting).
277. Compare GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SO-CIAL CHANGE? 336-43 (1991) (arguing that the Supreme Court is much less able to effect social change than is conventionally believed) and Bruce Ackerman, Constitutional Politics/Constitu-tional Law, 99 YALE LJ. 453, 546-47 (1989) (comparing the Justices of the Supreme Court to brakemen sitting in the caboose of a train, able to make it stop but not to make it go) with LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY, 299-312 (1992) (arguing that the Court is an important source of social change) and Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 5-17 (1979) (same).
278. Compare GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SO-CIAL CHANGE? 336-43 (1991) (arguing that the Supreme Court is much less able to effect social change than is conventionally believed) and Bruce Ackerman, Constitutional Politics/Constitu-tional Law, 99 YALE LJ. 453, 546-47 (1989) (comparing the Justices of the Supreme Court to brakemen sitting in the caboose of a train, able to make it stop but not to make it go) with LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY, 299-312 (1992) (arguing that the Court is an important source of social change) and Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 5-17 (1979) (same).
279. Compare GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SO-CIAL CHANGE? 336-43 (1991) (arguing that the Supreme Court is much less able to effect social change than is conventionally believed) and Bruce Ackerman, Constitutional Politics/Constitu-tional Law, 99 YALE LJ. 453, 546-47 (1989) (comparing the Justices of the Supreme Court to brakemen sitting in the caboose of a train, able to make it stop but not to make it go) with LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY, 299-312 (1992) (arguing that the Court is an important source of social change) and Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 5-17 (1979) (same).
280. Compare GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SO-CIAL CHANGE? 336-43 (1991) (arguing that the Supreme Court is much less able to effect social change than is conventionally believed) and Bruce Ackerman, Constitutional Politics/Constitu-tional Law, 99 YALE LJ. 453, 546-47 (1989) (comparing the Justices of the Supreme Court to brakemen sitting in the caboose of a train, able to make it stop but not to make it go) with LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY, 299-312 (1992) (arguing that the Court is an important source of social change) and Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 5-17 (1979) (same).
281. 347 U.S. 483 (1954).
282. 410 U.S. 113 (1973)•
283. We explore these ideas further below in Part VI, Final Reflections.
284. See Abram Chayes, The Rale of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1284-1304 (1976).
285. See, e.g., ROSENBERG, supra note 235 (addressing the inability of the Supreme Court to implement politically unpopular judgments).
286. Of course, the recent account is partly a pendulum swing -versions of the same story have been told before. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 239 (1962) (arguing
287. Of course, the recent account is partly a pendulum swing -versions of the same story have been told before. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 239 (1962) (arguing that the Supreme Court "must pronounce only those principles which can gain 'widespread acceptance'"); ROBERT G. McCLOS-KEY, THE AMERICAN SUPREME COURT 220-31 (1960) (concluding that despite the noise generated by certain decisions, the Court has never been either too far ahead of or too far behind American popular sentiment).
288. Cass R. Sunstein, Three Civil Rights Fallacies, 79 CAL. L. REV. 751, 765 (1991).
289. Michael J. Klarman, Brown v. Board of Education, Pacts and Political Correctness, So VA. L. REV. 185, 185 (1994) (replying to symposium commentators on his main article, Brown, Racial Change, and the Civil Rights Movement, So VA. L. REV. (1994)); see also Symposium, Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, 61 FORDHAM L. REV. é(1992) (offering a tribute to Brown's foremost champion, but revealing a strong strand of pessimism in the comments of many contributors).
290. Michael J. Klarman, Brown v. Board of Education, Pacts and Political Correctness, So VA. L. REV. 185, 185 (1994) (replying to symposium commentators on his main article, Brown, Racial Change, and the Civil Rights Movement, So VA. L. REV. (1994)); see also Symposium, Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, 61 FORDHAM L. REV. é(1992) (offering a tribute to Brown's foremost champion, but revealing a strong strand of pessimism in the comments of many contributors).
291. Michael J. Klarman, Brown v. Board of Education, Pacts and Political Correctness, So VA. L. REV. 185, 185 (1994) (replying to symposium commentators on his main article, Brown, Racial Change, and the Civil Rights Movement, So VA. L. REV. (1994)); see also Symposium, Brown v. Board of Education and Its Legacy: A Tribute to Justice Thurgood Marshall, 61 FORDHAM L. REV. é(1992) (offering a tribute to Brown's foremost champion, but revealing a strong strand of pessimism in the comments of many contributors).
292. See ROSENBERG, supra note 235.
293. See id, at 52.
294. Mark TUshnet, Public Law Litigation and the Ambiguities of Brown, 61 FORDHAM L. REV. 23, 23 (1992).
295. See id. at 23-24.
296. ROSENBERG, supra note 235, at 52 (emphasis omitted).
297. See Sunstein, JB TO note 242, at 765.
298. See GEOFFREY R. STONE, Lours M. SEIDMAN, CASS R. SUNSTEIN & MARK V. TUSHNET, CONSTITUTIONAL LAW 510- 11 (2d ed. 1991); see also ROSENBERG, supra note 235, at 52 (noting that after 1964 desegregation "took off," reaching 91.3% by 1972). Even celebrants of Brown as a watershed are quick to note the significance of the 1964 Civil Rights Act. See Constance B. Motley, The Historical Setting of Brown and Its Impact on the Supreme Court's Decision, 61 FORDHAM L. REV. 9, 17 (1992) ("With congressional enactment of the Civil Rights Act of 1964, legal segregation in America died.") (footnote omitted ).
299. See GEOFFREY R. STONE, Lours M. SEIDMAN, CASS R. SUNSTEIN & MARK V. TUSHNET, CONSTITUTIONAL LAW 510- 11 (2d ed. 1991); see also ROSENBERG, supra note 235, at 52 (noting that after 1964 desegregation "took off," reaching 91.3% by 1972). Even celebrants of Brown as a watershed are quick to note the significance of the 1964 Civil Rights Act. See Constance B. Motley, The Historical Setting of Brown and Its Impact on the Supreme Court's Decision, 61 FORDHAM L. REV. 9, 17 (1992) ("With congressional enactment of the Civil Rights Act of 1964, legal segregation in America died.") (footnote omitted ).
300. See, e.g., ROSENBERG, supra note 235, at i55-5f> (asserting that Brown may have actually delayed the achievement of civil rights).
301. It is fair to say that the South formed a sort of "death belt" geographically: between 1935 and 1969, more executions took place in the South than in the rest of the country combined. See FRANKLIN E. ZIMRING & GORDON HAWKINS, CAPITAL PUNISHMENT AND THE AMERICAN AGENDA 30 (1986).
302. See MELTSNER, supra note 15, at 290 (offering pungent quotes from Georgia's Lieutenant Governor Lester Maddox, Alabama's Lieutenant Governor Jere Beasley, Atlanta Police Chief John Inman, and Memphis Police Chief Bill Price).
303. See id. at 306-07 (describing numerous efforts by states to bring back the death penalty, including a special session of the Florida legislature).
304. See supra notes 2-3.
305. See Keyes v. School Dist No. i, 413 U.S. 189, 191 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. i, 5 (1971).
306. See, e.g., Jordan Steiker, Judging the Executioners: Progressive Politicians ana the Death Penalty, 2 RECONSTRUCTION 112, 112 (1993) (discussing the pro-death penalty stance of "progres-sive" politicians, such as former Democratic Governor and Richards, in death penalty states).
307. See Evitts v Lucey, 469 U.S. 387, 391-400 (1985).
308. See Crime Control Act of 1968, 18 U.S.C. §3$oi(b) (1994) (purporting to repeal Miranda v. Arizona, 384 U.S. 436 (1966)).
309. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
310. See Mapp v. Ohio, 367 U.S. 643, 655-56 (1961).
311. See Miranda, 384 U.S. at 473-74; Massiah v. United States, 377 U.S. 201, 206 (1964).
312. See Stovall v. Denno, 388 U.S. 293, 298-09 (1967). Congress also attempted to "repeal" Stovall in the Crime Control Act of 1968. See 18 U.S.C. §3502 (1994).
313. For example, despite the extreme unpopularity of the exclusionary rule, manifest in recent congressional attempts to "repeal" it, see Jackie Frank, House Votes to Ease Rules of Crime Evi-dence, REUTERS, Feb. 8, 1995, available in LEXIS, Nexis Library, Reuters File, the rule contin-ues to be enforced in judicial proceedings.
314. FINLEY P. DUNNE, MR. DOOLEY AT His BEST 77 (Elmer Ellis ed., 1938).
315. Stanley Ingber, The Interface of Myth and Practice in Law, 34 VAND. L. REV. 309, 339-40 (1981).
316. id.
317. See, e.g., MICHAEL J. PERRY, MORALITY, POLITICS, AND LAW 177 (1988) (offering as one "important reason why non-originalist constitutional adjudication must be moderate rather than immoderate, molecular rather than molar" the likelihood that "constitutional dialogue between the judiciary and the political community as a whole will proceed more productively if the judiciary acts cautiously and incrementally rather than radically or imperially").
318. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 45 (1987) (quoting Michael J. Perry, Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. REV. 689, 733 (1976)) (emphasis in original).
319. MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 45 (1987) (quoting Michael J. Perry, Abortion, the Public Morals, and the Police Power: The Ethical Function of Substantive Due Process, 23 UCLA L. REV. 689, 733 (1976)) (emphasis in original).
320. See, e.g., id. at 45-50 (arguing that compromise abortion legislation would have been en-acted in the absence of judicial intervention). But see LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 49-51 (1992) (challenging Glendon's assertion that states would have liber-alized their abortion laws in the absence of a Supreme Court decree). See generally GUIDO CALA-BRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW PERSPECTIVES ON A PUBLIC LAW PROBLEM 109-10 (1985) (arguing for the importance of dialogue and compromise in the abortion context); Robert A. Burt, Constitutional Lout and the Teaching of the Parables, 93 YALE LJ. 455, 488 (1984) (emphasizing the importance of the "dialogic process" in the context of the abortion-rights debate).
321. See, e.g., id. at 45-50 (arguing that compromise abortion legislation would have been en-acted in the absence of judicial intervention). But see LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 49-51 (1992) (challenging Glendon's assertion that states would have liber-alized their abortion laws in the absence of a Supreme Court decree). See generally GUIDO CALA-BRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW PERSPECTIVES ON A PUBLIC LAW PROBLEM 109-10 (1985) (arguing for the importance of dialogue and compromise in the abortion context); Robert A. Burt, Constitutional Lout and the Teaching of the Parables, 93 YALE LJ. 455, 488 (1984) (emphasizing the importance of the "dialogic process" in the context of the abortion-rights debate).
322. See, e.g., id. at 45-50 (arguing that compromise abortion legislation would have been en-acted in the absence of judicial intervention). But see LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 49-51 (1992) (challenging Glendon's assertion that states would have liber-alized their abortion laws in the absence of a Supreme Court decree). See generally GUIDO CALA-BRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW PERSPECTIVES ON A PUBLIC LAW PROBLEM 109-10 (1985) (arguing for the importance of dialogue and compromise in the abortion context); Robert A. Burt, Constitutional Lout and the Teaching of the Parables, 93 YALE LJ. 455, 488 (1984) (emphasizing the importance of the "dialogic process" in the context of the abortion-rights debate).
323. See, e.g., Gregory C. Sisk, Questioning Dialogue by Judicial Decree: A Different Theory of Constitutional Review and Moral Discourse, 46 RUTGERS L. REV. 1691, 1734 (1994) (noting that rights discourse in constitutional litigation "does not foster a. balanced and measured response to conflict").
324. See ZIMRING & HAWKINS, supra note 252, at 27.
325. The Gallup Poll conducted in 1966 revealed that 47% opposed and 42% favored the death penalty for murder, while 11% were undecided. See Robert M. Bohm, American Death Penalty Opinion, 1936-1986: A Critical Examination of the Galiup Polls, in THE DEATH PENALTY IN AMERICA: CURRENT RESEARCH 113, 116 (Robert M, Bohm ed., 1991).
326. Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring).
327. See MELTSNER, supra note 15, at 106-25 (describing the moratorium and its effects). As a result of the moratorium, the number of prisoners on death row skyrocketed to 607 by the end of 1970. See ZIMRING Si HAWKINS, supra note 252, at 34.
328. See Bohm, supra note 273, at 116.
329. See id. (finding 50% "for" to 42% "against" pre-Furman and 57% to 32% post-Furman).
330. See PATERNOSTER, supra note 8, at 59.
331. See Hugo A. Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. REV. L. & Soc. CHANCE 255, 263 (1990-1991) (compiling statistics from the United States Department of Justice that demonstrate a sharp decline in the granting of death sentence commutations after Furman and Cregg); Franklin E. Zimring, Inheriting the Wind: The Supreme Court and Capital Punishment in the içços, 20 FLA. ST. U. L. REV. 7, 17 (1992) (noting that "[executive clemency all but disappeared in the United States in the era of hands-on federal court involvement").
332. See Hugo A. Bedau, The Decline of Executive Clemency in Capital Cases, 18 N.Y.U. REV. L. & Soc. CHANCE 255, 263 (1990-1991) (compiling statistics from the United States Department of Justice that demonstrate a sharp decline in the granting of death sentence commutations after Furman and Cregg); Franklin E. Zimring, Inheriting the Wind: The Supreme Court and Capital Punishment in the içços, 20 FLA. ST. U. L. REV. 7, 17 (1992) (noting that "[executive clemency all but disappeared in the United States in the era of hands-on federal court involvement").
333. This loss of legitimacy is illustrated by the scathing scholarly criticism of the Court's death penalty jurisprudence from all sides.
334. The Court exempted only rape from the ambit of the death penalty. See Coker v. Georgia, 433 U.S. 584, 592 (1977) (opinion of White, J.). One could construe the Court's remand order in Eberheart v. Georgia, 433 U.S. 917 (1977), in which the defendant had been sentenced to death for rape and kidnapping, as an exemption of kidnapping as well, but this interpretation, which we endorse, has not yet been tested.
335. See Gregg v. Georgia, 428 U.S. 153, 195 (1976) (opinion of Stewart, Powell & Stevens, JJ.) (promising analysis of state capital punishment schemes on an individual basis); Furman v. Geor-gia, 408 U.S. 238, 403-04 (1972) (Burger, C.J., dissenting) (suggesting state legislative action).
336. See MELTSNER, supra note 15, at 306-09; Bohm, supra note 273, at 116.
337. See supra p. 410 (explaining why falling execution rates and 1966 poll data are not good evidence of a liberalizing trend).
338. 402 U.S. 183 (1971).
339. Id. at 204.
340. See, e.g., FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINA-TION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991); Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).
341. See, e.g., FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINA-TION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991); Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).
342. See, e.g., FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINA-TION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE (1991); Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22 (1992).
343. See McCautha, 402 U.S. at 204-05, 207 n.t8.
344. Robert Weisberg, Deregulating Death, 1983 SUP. CT. REV. 305, 393.
345. Id. at 353.
346. See id. at 342-43, 353 (noting especially Justice Powell's dissent in Bullington v. Missouri, 451 U.S. 430, 447 (1981) (Powell, J., dissenting), and then-Justice Rehnquist's concurring opinion in Zant v. Stephens, 462 U.S. 862, 893 (1983) (Rehnquist J., concurring in the judgment), as classic examples of the "existential moment" theory of capital sentencing).
347. See Sawyer v. Whitley, 505 U.S. 333, 340 (1992) (struggling with the issue of how to define "innocenfce] of the death penalty" for purposes of the miscarriage-of-justice excuse for procedural default on federal habeas corpus review).
348. See Weisberg, supra note 289, at 391-92 (citing STANLEY MILGRAM, OBEDIENCE TO AU-THORITY 138-43 (1974) (illustrating the dangers of obscuring individual moral choice by deference to the perceived authority of scientific method)).
349. See infra Part VI, Final Reflections. I
350. See Steiker & Steiker, supra note 57, at 84 4.
351. See supra pp. 373-75•
352. See supra p. 37 4.
353. See, e.g., Randall K- Packer, Struck by Lightning: The Elevation of Procedural Form over Substantive Rationality in Capital Sentencing Proceedings, 20 N.Y.U. REV. L. & Soc. CHANGE 641, 665-66 (1993-1994) (lamenting the failure of current doctrine to ensure that states truly limit the pool of the death-eligible); Richard A. Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C. L. REV. 1103, 1169-70 (1990) (criticizing the broad death-eligibil-ity of persons convicted pursuant to the felony-murder rule); Tamar Lewin, Who Decides Who Will Die? Even Within States, It Varies, N.Y. TIMES, Feb. 23, 1995, at Ai (noting that "ti]n every state with the death penalty . . . prosecutors seek capital punishment in only a tiny fraction of the cases in which it is allowed" ).
354. See, e.g., Randall K- Packer, Struck by Lightning: The Elevation of Procedural Form over Substantive Rationality in Capital Sentencing Proceedings, 20 N.Y.U. REV. L. & Soc. CHANGE 641, 665-66 (1993-1994) (lamenting the failure of current doctrine to ensure that states truly limit the pool of the death-eligible); Richard A. Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C. L. REV. 1103, 1169-70 (1990) (criticizing the broad death-eligibil-ity of persons convicted pursuant to the felony-murder rule); Tamar Lewin, Who Decides Who Will Die? Even Within States, It Varies, N.Y. TIMES, Feb. 23, 1995, at Ai (noting that "ti]n every state with the death penalty . . . prosecutors seek capital punishment in only a tiny fraction of the cases in which it is allowed" ).
355. See, e.g., Randall K- Packer, Struck by Lightning: The Elevation of Procedural Form over Substantive Rationality in Capital Sentencing Proceedings, 20 N.Y.U. REV. L. & Soc. CHANGE 641, 665-66 (1993-1994) (lamenting the failure of current doctrine to ensure that states truly limit the pool of the death-eligible); Richard A. Rosen, Felony Murder and the Eighth Amendment Jurisprudence of Death, 31 B.C. L. REV. 1103, 1169-70 (1990) (criticizing the broad death-eligibil-ity of persons convicted pursuant to the felony-murder rule); Tamar Lewin, Who Decides Who Will Die? Even Within States, It Varies, N.Y. TIMES, Feb. 23, 1995, at Ai (noting that "ti]n every state with the death penalty . . . prosecutors seek capital punishment in only a tiny fraction of the cases in which it is allowed" ).
356. See, Steiker & Steiker, supra note 57, at 863-64.
357. See supra p. 376 (discussing Coker v. Georgia, 433 U.S. 584 (1977)). The crime of treason may be an exception to this general prohibition against punishing crimes other than murder with death.
358. See supra pp. 376-77 (discussing Tison v. Arizona, 481 U.S. 137 (1987)).
359. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 338-39 (1989) (opinion of O'Connor, J.) ("In light of the diverse capacities and life experiences of mentally retarded persons, it cannot be said on the record before us today that all mentally retarded people, by definition, can never act with the level of culpability associated with the death penalty."); cf. Stanford v. Kentucky, 492 U.S. 361, 378 (1989) (opinion of Scalia, J.) (refusing to use "socioscienufic" evidence to exempt sixteen- and ieventeen-year-olds from the death penalty).
360. See, Jamie M. Biliotte, Student Article, Is It Justified? -The Death Penalty and Mental Retardation, 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 333, 337 (1994) (suggesting that approxi-mately 12% of the death-row population consists of persons with mental retardation); John H. Blume, Representing the Mentally Retarded Defendant, THE CHAMPION, Nov. 1987, at 32 (esti-mating that 250 people with mental retardation were on death row in 1987).
361. See, Jamie M. Biliotte, Student Article, Is It Justified? -The Death Penalty and Mental Retardation, 8 NOTRE DAME J.L. ETHICS & PUB. POL'Y 333, 337 (1994) (suggesting that approxi-mately 12% of the death-row population consists of persons with mental retardation); John H. Blume, Representing the Mentally Retarded Defendant, THE CHAMPION, Nov. 1987, at 32 (esti-mating that 250 people with mental retardation were on death row in 1987).
362. See, supra pp. 400-01 (discussing McCleskey v. Kemp, 481 U.S. 279 (1987)).
363. See, McCUskey, 481 U.S. at 311-12.
364. See id. at 312 & 11.35.
365. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656-58 (1989) (requiring proof that "specific" policies or practices resulted in "significant" disparate outcomes); Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971) (recognizing a Title Vu claim without proof of discrimi-natory intent).
366. See Furman v. Georgia, 408 U.S. 238, 255-57 (1972) (Douglas, J., concurring); see also supra pp. 367-68.
367. See BALDUS, WOODWORTH & PULASKI, supra note 8, at 160, 185 (suggesting that a post-Pitrman decline in race-of-defendant discrimination compared with relatively constant race-of-vic-tim discrimination has resulted in "the principal beneficiaries of ... race-of-victim discrimination being black defendants").
368. See Randall L. Kennedy, McCleskey v. Kemp; Race, Capital Punishment, and the Supreme Court, éïßHARV. L. REV. 1388, 1390-91 (1988).
369. See id. at 1433-34.
370. See id.
371. See Givelber, supra note 87, at 417 n.222 (citing statistics indicating that in 1991, 4838 white offenders killed 4399 white victims and 347 African-American victims, while 5778 African-American offenders killed 691 white victims and 5035 African-American victims, in cases involv-ing a single victim and a single defendant).
372. See supra Part m.D.
373. See supra pp. 398-99 (discussing the ineffectiveness standard of Strickland v. Washington, 466 U.S. 668 (1984)).
374. See, e.g., Dufour v. Mississippi, 479 U.S. 891, 892-94 (1986) (Marshall, J., dissenting from denial of certiorari) (criticizing the failure of petitioner's trial counsel to present any mitigating evidence during the punishment phase); Hamilton v. Zant, 466 U.S. 989, 991 (1984) (Marshall, J., dissenting from denial of certiorari) (same); Sidebottom v. DeIo, 46 F.3d 744, 754 (8th Cir.) (hold-ing that a capital defendant was not denied effective assistance of counsel despite counsel's failure to present any evidence during the punishment phase), cert, denied, 116 S. Ct 144 (1995); Romero v. Lynaugh, 884 F.2d 871, 876-77 (sth Cir. 1989) (holding that a lawyer was not ineffective de-spite his failure to offer any evidence at all at the punishment phase of his client's capital trial), cert, denied, 494 U.S. 1012 (1990).
375. See Bright, supra note 9, at 1857-62.
376. See Ingber, supra note 266, at 339-40.
377. See Act of June 7, 1995, ch. 319, sec. i, art. 11.071(2X6), 1995 Tex. Sess. Law Serv. 2764, 2764 (Vernon) (providing for the appointment of counsel to represent indigent death-row inmates in state postconviction proceedings).
378. See SPANCENBERG GROUP REPORT, A STUDY OF REPRESENTATION IN CAPITAL CASES IN TEXAS 151-53 (1993).
379. See, e.g., Murray v. Giarratano, 492 U.S. i, 8 (1989) (quoting Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987))•
380. See McKane v. Durston, 153 U.S. 684, 687-S8 (1894).
381. See Whitmore v. State, 771 S.W.ad 266, 267 & n.i (Ark. 1989) (limiting collateral review of state convictions "to questions of whether the commitment is valid on its face or whether the convicting court had proper jurisdiction").
382. See, e.g., CaI. A.B. 570, 1995-96 Reg. Sess. (1995) (introduced) (seeking to amend the Cali-fornia Penal Code and setting forth time constraints on the filing of habeas corpus petitions); Ga. S.B. 113, I43rd Gen. Assembly, Reg. Sess. (1995) (enacted) (limiting the availability of habeas corpus relief); Idaho S.B. 1084, 53rd Leg., ist Reg. Sess. (1995) (enacted) (prohibiting successive postconviction petitions in many circumstances); Ohio S.B. 4, 12 ist Gen. Assembly, Reg. Sess. (1995) (introduced) (requiring that petitions for postconviction relief be filed within 90 days of when the trial transcript is filed with the direct appeal of the judgment); Pa. S.B. 81, ist Spec. Sess. (1995) (introduced Mar. 15, 1995) (providing unitary review in postconviction death penalty cases); Tex. S.B, 440, 74th Leg., Reg. Sess. (1995) (enacted) (establishing unitary procedure for direct appeal and postconviction petitions and limiting the cognizability of successive petitions); see also 111. H.B. 1636, 8gth Gen. Assembly, Reg. Sess. (1995) (introduced) (revoking 180 days of good conduct credit for inmates who file "frivolous" lawsuits as a litigation deterrent).
383. See Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 MlCH. L. REV. 862, 907-08 (1994).
384. See Stephen P. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759, 779 (1995) (discussing the political pressures facing elected judges in capital cases and noting that 32 of the 38 death penalty states select or retain judges through elections).
385. See TEX. CODE CRIM. PROC. ANN. art. 11.07 §2(b) (West Supp. 1995)
386. See, e.g., Barry Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247, 252-53 (1988) (decrying the complexity wrought by the Court's new doctrines); Yale L. Rosenberg, Kaddish for Federal Habeas Corpus, 59 GEO. WASH. L. REV. 362, 362-63 (1991) (arguing that the Rehnquist Court "has quietly eviscerated, if not interred, federal habeas corpus"); Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV. 303, 308-09 (1993) (discussing the Court's common-law approach to habeas).
387. See, e.g., Barry Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247, 252-53 (1988) (decrying the complexity wrought by the Court's new doctrines); Yale L. Rosenberg, Kaddish for Federal Habeas Corpus, 59 GEO. WASH. L. REV. 362, 362-63 (1991) (arguing that the Rehnquist Court "has quietly eviscerated, if not interred, federal habeas corpus"); Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV. 303, 308-09 (1993) (discussing the Court's common-law approach to habeas).
388. See, e.g., Barry Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247, 252-53 (1988) (decrying the complexity wrought by the Court's new doctrines); Yale L. Rosenberg, Kaddish for Federal Habeas Corpus, 59 GEO. WASH. L. REV. 362, 362-63 (1991) (arguing that the Rehnquist Court "has quietly eviscerated, if not interred, federal habeas corpus"); Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. REV. 303, 308-09 (1993) (discussing the Court's common-law approach to habeas).
389. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977) (announcing a procedural default doctrine that is less favorable to habeas petitioners).
390. See, e.g., Teague v. Lane, 489 U.S. 288, 305-10 (1989) (plurality opinion) (limiting retroac-tive application of new constitutional decisions on federal habeas).
391. See McCleskey v. Zant, 499 U.S. 467, 488-96 (1991) (substantially restricting opportunities for filing new-claim successive petitions).
392. See Steilter, supra note 328, at 352-53.
393. See, e.g., id. at 363-65.
394. Cf. Payne v. Tennessee, 501 U.S. 808, 829 (1991) (suggesting that "narrowf ] . . . margins" and "spirited dissents" affect the precedential weight of constitutional decisions).
395. See Walton v. Arizona, 497 U.S. 639, 664 (1990) (Scalia, J., concurring in part and concur-ring in the judgment) (maintaining that to acknowledge "that there is perhaps an inherent ten-sion" between these two strands of death penalty jurisprudence "is rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers in World War D" (quot-ing McCleskey v. Kemp, 481 U.S. 279, 363 (1987) (Blackmun, Jr., dissenting)) (internal quotation marks ommitted).
396. See id. at 671-73.
397. See Callins v. Collins, 114 S. CL 1127, 1128-38 (1994) (Blackmun, J., dissenting from de-nial of certiorari).
398. See id.
399. With the retirements of Justices Brennan, Marshall, and Blackmun in 1990, 1991, and 1994, respectively, there is no longer an abolitionist pole on the Court.
400. This centrist commitment was perhaps most powerfully illustrated by the Court's decision in Planned Parenthood of Southeastern Pa. v. Casey, 112 S. Ct. 2791 (1992), in which the centrist coalition formed by Justices O'Connor, Kennedy, and Souter adhered to Roe v. Wade, 410 U.S. "3 (i973). as precedent while reworking its particular doctrinal implications.
401. McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 199 n.so (1976) (plurality opinion)).
402. See, e.g., Walton v. Arizona, 497 U.S. 639, 714-19 (1990) (Stevens, J., dissenting) (attempt-ing to explain why the requirement that sentencer discretion be channeled is consistent with un-limited sentencer discretion to exempt defendants from the death penalty based on mitigating evidence).
403. Justice Scalia noted this conflict in Walton, 497 U.S. at 664 (Scalia, J., concurring in part and concurring in the judgment), and called for the abandonment of an entire line of cases de-manding individualized sentencing in capital cases. See id. at 671-73. Justice Blackmun later called attention to the same conflict in his dissent from denial of certiorari in Callins v. Collins, 114 S. Ct. 1127 (1994), and argued for the constitutional abolition of the death penalty altogether.
404. See infra pp. 433-37-
405. See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 262-95 (1987); Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1052 (1978); Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. REV. 379 passim. Despite often significant variations in the way different theorists define "legitimation," we attempt to sketch the idea in a fashion general enough to have widespread acceptance.
406. See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 262-95 (1987); Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1052 (1978); Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. REV. 379 passim. Despite often significant variations in the way different theorists define "legitimation," we attempt to sketch the idea in a fashion general enough to have widespread acceptance.
407. See, e.g., MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 262-95 (1987); Alan D. Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1052 (1978); Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. REV. 379 passim. Despite often significant variations in the way different theorists define "legitimation," we attempt to sketch the idea in a fashion general enough to have widespread acceptance.
408. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1291 (1986) (first definition).
409. id. (second definition).
410. This was Weber's own description of his special sense of legitimation. See MAX WEBER, BASIC CONCEPTS IN SOCIOLOGY 73 (H.P. Secher Irans., 1962).
411. See HANNA F. PITKIN, WITTGENSTEIN AND JUSTICE: ON THE SIGNIFICANCE OF LUDWIG WITTGENSTEIN FOR SOCIAL AND POLITICAL THOUGHT 283 (1993). é
412. This particular spin on the Weberian concept of legitimation is common among legal schol-ars who write about the "legitimating" or "legitimizing" power and effect of law. See, e.g., KEL-MAN, supra note 345, at 269 (arguing that "legal thinking" legitimates, at least in part, by "giving the appearance that the system is less harshly oppressive or biased than it could readily be"); Freeman, supra note 345, at 1052 (arguing that legal doctrine legitimizes when it convincingly "holds out a promise" but "refrainfs] from delivering on the promise").
413. See Edward Greer, Antonio Gramsci and "Legal Hegemony," in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 304, 304 (David Kairys ed., 1982).
414. See ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS (Quintin Hoare & Geoffrey N. Smith trans., 1971). In describing the imperviousness of the Italian state to Russian-style revolution, Gramsci observed that "when the State trembled a sturdy structure of civil soci-ety was at once revealed. The State was only an outer ditch, behind which there stood a power-ful system of fortresses and earthworks . . . ." Id. at 238. In the more down-to-earth language of legal historian Robert Gordon: This is Antonio Gramsci's notion of "hegemony," i.e., that the most effective kind of domi-nation takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are. Robert Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, supra note 351, at 281, 286.
415. See ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS (Quintin Hoare & Geoffrey N. Smith trans., 1971). In describing the imperviousness of the Italian state to Russian-style revolution, Gramsci observed that "when the State trembled a sturdy structure of civil soci-ety was at once revealed. The State was only an outer ditch, behind which there stood a power-ful system of fortresses and earthworks . . . ." Id. at 238. In the more down-to-earth language of legal historian Robert Gordon: This is Antonio Gramsci's notion of "hegemony," i.e., that the most effective kind of domi-nation takes place when both the dominant and dominated classes believe that the existing order, with perhaps some marginal changes, is satisfactory, or at least represents the most that anyone could expect, because things pretty much have to be the way they are. Robert Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, supra note 351, at 281, 286.
416. Many legal scholars who write about legitimation directly acknowledge their debt to Gram-sci. See, e.g., Gordon, supra note 352, at 286-87; Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, /OJ7-/Ç4/, 62 MINN. L. REV. 265, 268 n.12 (1978).
417. See, Martha Minow, Introduction: Robert Cover and Law, Judging, and Violence, in NAR-RATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER é(Martha Minow, Michael Ryan & Austin Saiat eds., 1992).
418. ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975).
419. See id. at 226-29.
420. Robert Cover, Violence and the Word, 95 YALE LJ. 1601, 1614 (1986).
421. See id. at 1622-28.
422. Some other "internal" legitimation arguments have focused, like those of Cover, on the mindset of judges, see Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 670-73 (1981) (arguing that judges manipulate legal argument to avoid having to make difficult choices between rules and standards), while others have addressed more broadly "the lawyer class," Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 353 (1979) (arguing that Blackstone's work was "designed to convince the lawyer class, and vaguely reassure the public, that all was well in the crucial legal bailiwick").
423. Some other "internal" legitimation arguments have focused, like those of Cover, on the mindset of judges, see Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV. 591, 670-73 (1981) (arguing that judges manipulate legal argument to avoid having to make difficult choices between rules and standards), while others have addressed more broadly "the lawyer class," Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 205, 353 (1979) (arguing that Blackstone's work was "designed to convince the lawyer class, and vaguely reassure the public, that all was well in the crucial legal bailiwick").
424. Freeman, supra note 345.
425. Id. at 105 1.
426. Other examples of this type of legitimation argument abound. See, e.g., Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1285 (1984) (arguing that administrative and corporate law legitimate bureaucracy as an organizational form by telling "a series of stories that assure us about the acceptability of bureaucratic organizations"); Klare, supra note 353, at 268 (chronicling how "legal consciousness, legal institutions, and legal practice" in the area of labor law contributed to the "deradicalization" of the working class); Jonathan A. Willens, Structure, Content and the Exigencies of War: American Prison Law After Twenty-Five Years, iç62-iç8y, 37 AM. U. L. REV. 41, 51 (1987) (contending that "the principal achievement of prison law is the legitimation of American prisons").
427. Other examples of this type of legitimation argument abound. See, e.g., Gerald E. Frug, The Ideology of Bureaucracy in American Law, 97 HARV. L. REV. 1276, 1285 (1984) (arguing that administrative and corporate law legitimate bureaucracy as an organizational form by telling "a series of stories that assure us about the acceptability of bureaucratic organizations"); Klare, supra note 353, at 268 (chronicling how "legal consciousness, legal institutions, and legal practice" in the area of labor law contributed to the "deradicalization" of the working class); Jonathan A. Willens, Structure, Content and the Exigencies of War: American Prison Law After Twenty-Five Years, iç62-iç8y, 37 AM. U. L. REV. 41, 51 (1987) (contending that "the principal achievement of prison law is the legitimation of American prisons").
428. See Douglas Hay, Property, Authority and the Criminal Law, in ALBION'S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND 17 (1975).
429. See id. at 18.
430. See id. at 40-49.
431. Id. at 55.
432. Id. at 56.
433. See, e.g., KELMAN, supra note 345, at 269 (arguing that "legal thinking is prone to be an effective justificatory ideology" and thus makes "counterhegemonic thoughts . . . harder to think"); Peter Gabe! & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Lam, in CRITICAL LEGAL STUDIES 303, 303 (Allan C. Hutchinson ed., 1989) (arguing that "the legal system works at many different levels to shape popular consciousness toward ac-cepting the political legitimacy of the status quo"); Duncan Kennedy, A Critique of Adjudication (fin de siècle) 427 (May 18, 1995) (unpublished manuscript, on file with the Harvard Law School Library) (arguing that adjudication helps to legitimate "the particular set of hierarchies that con-stitute our social arrangements").
434. See, e.g., KELMAN, supra note 345, at 269 (arguing that "legal thinking is prone to be an effective justificatory ideology" and thus makes "counterhegemonic thoughts . . . harder to think"); Peter Gabe! & Paul Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Lam, in CRITICAL LEGAL STUDIES 303, 303 (Allan C. Hutchinson ed., 1989) (arguing that "the legal system works at many different levels to shape popular consciousness toward ac-cepting the political legitimacy of the status quo"); Duncan Kennedy, A Critique of Adjudication (fin de siècle) 427 (May 18, 1995) (unpublished manuscript, on file with the Harvard Law School Library) (arguing that adjudication helps to legitimate "the particular set of hierarchies that con-stitute our social arrangements").
435. Weisberg, supra note 289, at 353.
436. Id. at 385.
437. Id. at 364.
438. Id. at 376.
439. Id. at 377.
440. See supra p. 375.
441. 472 U.S. 320 (1985).
442. Id, at 329 (quoting McGautha v. California, 402 U.S. 183, 208 (1971)) (internal quotation marks omitted).
443. See, e.g., David G. Stout, The Lawyers of Death Row, N.Y. TIMES, Feb. 14, 1988, §6, at 46.
444. See Bedau, supra note 279, at 269 (noting that "half or more of all death sentences are reversed in state or federal appellate courts").
445. The Supreme Court recently acknowledged the legal sophistication of sentencing juries when it held that a capital defendant has a right to counter arguments about his future danger-ousness with an instruction, when appropriate, that a verdict of "life imprisonment" means "with-out possibility of parole." See Simmons v. South Carolina, 114 S. Ct. 2187, 2196 (1994). The possibility that jurors would bring in their outside knowledge about parole, despite the seeming clarity of the term "life imprisonment," demonstrates the sort of widespread basic knowledge that we posit.
446. Cf. Weisberg, supra note 289, at 376-79 (describing a standard post-Furman prosecutorial argument).
447. Bedau, supra note 279, at 268.
448. Zimring, supra note 279, at 17.
449. Dennis F. Thompson, Moral Responsibility of Public Officials: The Problem of Many Hands, 74 AM. POL. Sci. REV. 905, 905 (1980).
450. Weisberg, supra note 289, at 384 (citing Phoebe C. Ellsworth & Lee Ross, Public Opinion and Capital Punishment: A Close Examination of the Views of Abolitionists and Retentionists, 29 CRIME & DELINQ. 116 (1983)).
451. Hyde, supra note 345, at 414.
452. See supra notes 377-379 and accompanying text.
453. See supra notes 6-7 and accompanying text.
454. See generally Hay, supra note 363 (contending that the ruling class in eighteenth-century England was able to maintain its dominance by creating an ideology of justice in the application of capital punishment).
455. See supra pp. 427-28.
456. Arthur A. Leff, Economic Analysis of Late: Some Realism About Nominalism, 60 VA. L. REV. 451, 466 (1974).