St. Thomas Law Review
First Page
299
Document Type
Article
Abstract
The history of life on this planet has been one of change. In fact, the very word 'history' implicitly carries within it the notion of change. Thus, it should come as no surprise that the history of law, like culture, politics, religion, and other institutions of humanity is also one of change. In fact, when one examines the history of U.S. law in its constituent parts, that is, legal rules and decisions, it becomes apparent that these rules and decisions have been subject to mutation, expansion, retraction, abandonment, and creation. Occasionally, although a court purports to be applying a legal rule or decision in the exact fashion and manner that it has in the past, it is in fact either applying the rule or decision in a different manner or applying a different rule or decision altogether. It is to this last phenomenon, that of 'silent' legal changes, that this article is directed. For the past thirty years, the Supreme Court of Florida's comparative proportionality review of capital sentences has been hailed by commentators as a leading example of what is possible, in terms of limiting arbitrariness and excessiveness in the administration of the death penalty, when a court undertakes comparative proportionality review in a meaningful, vigorous, and principled manner. In fact, this longstanding and wide-scale praise has led many scholars to labor under the assumption that the Supreme Court of Florida's comparative proportionality review currently continues to operate in this praise-worthy manner. Of course, the continued adherence to this assumption is entirely understandable since the Supreme Court of Florida still proclaims to be undertaking comparative proportionality review in exactly the same manner as it had during the period that resulted in this wide-scale praise. This article, however, seeks to challenge the assumption that the Supreme Court of Florida is still undertaking a meaningful, vigorous, and principled review of capital sentences. In order to accomplish this goal, this article presents a critical, legal and empirical analysis of the Supreme Court of Florida's comparative proportionality review over the last fifteen years (1989-2003). The empirical study is aimed at identifying trends in the court's comparative proportionality review, while the legal analysis explains the determinants of those trends. Section II offers an overview of the Supreme Court of Florida's system of comparative proportionality review, including a description and appraisal of the court's practice, methodology, and goals. Section III presents the methodology, research design, and measures employed in the empirical study of the Supreme Court of Florida's comparative proportionality review. Section IV provides an overview, through an empirical lens, of the disposition of death sentences by the Supreme Court of Florida undertaking comparative proportionality review. Section V then applies the methodology, research design, and measures to the Supreme Court of Florida's proportionality review in order to empirically demonstrate the effect that defendant culpability has had on the court's comparative proportionality review decisions. Section VI discusses evidence of a possible decrease in consistency and selectivity in the Florida capital punishment system as a whole due to the demise of the Supreme Court of Florida's policy of meaningful, vigorous, and principled comparative proportionality review. Section VII then offers possible explanations for the demise of the Supreme Court of Florida's comparative proportionality review. Section VIII concludes.
Recommended Citation
Phillip L. Durham,
Review in Name Alone: The Rise and Fall of Comparative Proportionality Review of Capital Sentences by the Supreme Court of Florida,
17
St. Thomas L. Rev.
299
(2004).
Available at:
https://scholarship.stu.edu/stlr/vol17/iss2/7