Article Title

Legitimizing Error


Since Furman v. Georgia, the Supreme Court has sought to harmonize competing constitutional demands under Eighth Amendment rules regulat-ing the two-step eligibility and selection stages of the capital decision-making process. Furman’s demand for rationality and consistency requires that, at the eligibility stage, the sentencer’s discretion be limited and guided by clear and objective fact-based standards that rationally narrow the class of death-eligible defendants. The selection stage requires a determination of whether a specific death-eligible defendant actually deserves that punish-ment, as distinguished from other death-eligible defendants. Here, fundamental fairness and respect for the uniqueness of the individual are the cornerstones of the individualized sentencing requirements, which demand the sentencer consider and give effect to relevant mitigating evidence. The principles embodied in the individualized sentencing determination, as stated in Lockett v. Ohio, are rooted in the “fundamental respect for human-ity underlying the Eighth Amendment.” In Woodson v. North Carolina, the Court recognized that, because “death is different” from all other punish-ments, the Eighth Amendment requires a heightened degree of “reliability in the determination that death is an appropriate punishment in a specific case.”