Capital Sentencing Evidence After Penry and Payne

The present disorder in the Court's capital case jurisprudence on sentencing raises the question of whether it is really possible to devise and implement systems which provide guided discretion and avoid arbitrary and capricious imposition of the death penalty. It may well be that the decision of whether or not to execute another human being is so fraught with deep-seated emotional, psychological, religious and highly individual personal value judgments on the part of the sentencer, whether judge or jury, that it is beyond the capacity of the legal system to confine the discretion of the sentencer with lists of aggravating and mitigating factors. The Court's capital case jurisprudence on sentencing may be little more than an elaborate illusion which provides the appearance of carefully guided discretion, but which actually delivers the same kind of arbitrary and capricious infliction of the death penalty that was denounced in Furman. Professor Benson discusses that illusion, the reasons for it, and its characteristics. He then proposes that his analysis will provide more information about where we are and what we are doing with capital punishment at this point in our national life than does legal analysis of case law.