The March 2021 issue of National Geographic may have Mars on the cover, but its article on the death penalty is what drew us to the magazine this month.  Entitled “Sentenced to death, but innocent: These are stories of justice gone wrong,” and written by Phillip Morris, it delves into the shocking realities of innocent people who are nevertheless arrested, charged, convicted, and sentenced to death.  Great photography is included by Martin Schoeller.

Accompanying this work is an explanation from the Nat Geo editor, “Why We Reported on Death Row for the Exonerated,” but this is available only to magazine subscribers.  The Morris piece is free for you to read online.

It’s a recommended read.

This month, the question is raised once again about what the condemned actually experience when undergoing lethal injection, and whether or not this constitutes cruel and unusual punishment. It appears that the executioners’ perspective on what is taking place and those of the execution witnesses may be far, far different.  Read, “Executioners sanitized accounts of deaths in federal cases,” written by Michael Tarm and published by the Associated Press on February 17, 2021.

Pain and Cruel and Unusual Punishment

Of course, as Mr. Tarm points out and as we have discussed earlier, SCOTUS has made it clear that the U.S. Constitution does not provide for a pain-free execution.  The condemned can experience pain without it being in violation of constitutional protections against cruel and unusual punishment.  Read, Painful Executions are not Cruel and Unusual Punishment under the Eighth Amendment.

It’s also important to point out that different lethal executions use different drugs, alone or in combination.  The federal executions involved pentobarbital.  Used alone.

Pentobarbital has been criticized for use in executions because if it is improperly administered, it will cause pain.  And no one is sure its intensity.  Read, “Why the Justice Department’s Plan to Use a Single Drug for Lethal Injections Is Controversial,” written by Josiah Bates and published by Time Magazine on July 29, 2019.

We’ve discussed pentobarbital before.  You may recognize it as the drug that veterinarians commonly use to euthanize beloved pets.  Read, Pentobarbital Supply and Demand for Execution DrugsPentobarbital Shortage in Death Penalty Executions: The Continuing Problem of Finding Drugs for Lethal Injections; and Lethal Injections and Compounding Pharmacies: Why These Are Very Bad Sources of Supply.

How is pentobarbital so painful as to constitute cruel and unusual punishment?

The argument, as described by Justice Sotomayor in her recent dissent in Barr v. Lee, 140 S. Ct. 2590 (2020), is as follows (emphasis added):

In light of this change, respondents alleged that the Government’s planned use of pentobarbital could result in needless pain and suffering in violation of the Eighth Amendment. Among other things, respondents proffered expert evidence that the majority of those injected with pentobarbital suffer flash pulmonary edema, which can lead to a sensation akin to drowning and “`extreme pain, terror, and panic.'” Id., at 10a.

 

As President Biden takes office, activists against the federal death penalty are hopeful that he will commute the death sentences of those who sit on the Federal Death Row.  See, e.g.,Dems Squad members try to save the worst killers of all: Pressley and Bush demand Biden commutes sentences of all 49 federal prisoners on death row, including Charleston church shooter Dylan Roof and Boston Marathon bomber Dzhokhar Tsarnaev, written by Martin Gould and published by the UK Daily Mail on January 26, 2021.

But what is commutation of a death sentence? And how does it differ from a resentencing hearing?

 

Commutation

Commutation is a form of clemency that stops the execution and ends the sentence of death.  It does not change the underlying criminal conviction:  the person is still considered guilty of the crimes for which he was tried and sentenced.  It is not a pardon.

Commutation substitutes a lesser penalty or sentence for that of capital punishment.  The power to commute a death sentence lies with different authorities, depending on the jurisdiction.  Florida, for example, requires the governor to have a recommendation to commute a death sentence from the Florida  Clemency Board before the governor can act.

Constitutionally, commutation is considered a part of the government’s power to pardon someone after they have been sentenced to death.

For more, read:

Resentencing Hearing

A resentencing hearing is a full evidentiary hearing where both the state and the defense present arguments and authorities to the judge who will decide whether to change the death sentence.  As with a commutation, the person is still considered guilty of the crimes for which he was tried and sentenced.

However, after the resentencing hearing the person may no longer face capital punishment.  His sentence may be modified to remove the death penalty.

In Florida, decisions by both the Supreme Court of the United States as well as the Florida Supreme Court have resulted in court-ordered resentencing hearings for many of those residing on Florida’s Death Row.

Terence Lenamon is one of the Florida capital defense lawyers involved in these resentencing hearings. See, e.g.: Florida Supreme Court: How Victory of Lenamon Client Michael James Jackson Impacts Future Death Penalty Defense.

For more on resentencing hearings in Florida, see: “Florida Supreme Court Overturns Precedent Throughout 2020,” published by the American Bar Association Death Penalty Representation Project on January 26, 2021.

Also see:

Recommended Video:  a February 2016 TED Talk given by Nick McKeown, a Professor of Computer Science and Electrical Engineering at Stanford University. As a college student in the United Kingdom, McKeown ran the UK student chapter of Amnesty International, and since 1999, Nick has fought to end the death penalty in the United States.

Some of the data is dated, but sadly much of it rings as true today as it did five years ago. One particular importance, his discussion of the power in small steps – like writing a letter – in these cases.

Another important takeaway: the misconduct of law enforcement and the correspondingly extreme importance of experienced, impassioned, and dedicated capital punishment defense attorneys.

Like Terence Lenamon.

Watch it here:

The Florida Supreme Court recently ruled in favor of death penalty reinstatement defense arguments in the capital case of Michael James Jackson, a case on Terence Lenamon’s trial docket back in April 2019.  For details, read “Hurst: Terence Lenamon Defending Michael Jackson in Jacksonville Beginning June 10, 2019.”

Florida attorney Maria Deliberato was appointed to the Jackson appeal.  Terry: “She did a great job!”

The Importance of Jackson to Florida Death Penalty Defense

In tandem with a decision involving the case of Florida Death Row inmate Bessman Okafor (State v. Okafor), the Michael James Jackson decision has confirmed the right to capital resentencing hearings in the aftermath of Hurst.

These decisions resolve the impact of State v. Poole, a Florida Supreme Court decision that came down in January 2020.  Prosecutors read Poole as an argument for rescinding orders granting Florida Death Row inmates new sentencing trials.

Jackson, together with Okafor, confirms the defense position that in Florida, these inmates are entitled to resentencing hearings before the death penalty can be reinstated in their case.

In Jackson, the State of Florida sought an extraordinary writ from the Florida Supreme Court directing the circuit court to dismiss Jackson’s penalty phase trial / resentencing hearing, while reinstating his vacated death sentence.  As an alternative, the State of Florida sought a writ of prohibition to block the circuit court from holding the resentencing hearing / penalty phase trial under the argument that Jackson’s death sentence could not be reinstated retroactively.

For the successful defense arguments presented in the Jackson matter, read Maria Deliberato’s Response to Emergency All Writs Petition and Petition for Writ of Prohibition filed April 2, 2020, which includes the following:

The State’s Petition is a thinly veiled attempt at a belated appeal — 970 days after Mr. Jackson’s two 8-4 advisory death recommendations were vacated. The State does not possess the right to a belated appeal under any equitable, statutory, or legal authority. But for Hurricane Dorian, which forced the closure of the Duval County courts and caused Mr. Jackson’s September 2019 penalty phase trial to be postponed at the last minute, his resentencing would already be complete.

Despite the State’s arguments to the contrary, this Court’s ultimate jurisdiction over death penalty cases is not in jeopardy. Granting the Petition would not only be a violation of Mr. Jackson’s due process, equal protection, Sixth Amendment, and Eighth Amendment rights, but would also result in this Court ignoring or reversing decades-long precedent regarding finality of judgments and affirmative waivers of appellate remedies. The effect would be to destabilize Florida’s entire judicial system. This Court should deny the Petition and remand Mr. Jackson’s case to the circuit court to conduct his previously scheduled penalty phase trial.

Response, page 3.

For more on Florida resentencing issues in death penalty cases in the aftermath of the Supreme Court of United States’ ruling in Hurst v. Florida, see:

 

The Death Penalty Information Center has released the annual year-end report: it’s a recommended read.

In the 2020 Year End Report from the Death Penalty Information Center, perhaps the most shocking revelation is its tally of ten (10) executions within a five (5) month time period by the federal government. These are civilian executions, not involving the military.  For more on that distinction read our earlier post, 10 Things to Know About U.S. Death Penalty in First Half 2020.
The Report points out that in 2020, for the first time in our nation’s history, the federal government executed more people than all the states — combined.
  • Every prisoner executed this year was age 21 or younger at the offense or had at least one of the following impairments: significant evidence of mental illness (8); evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range (6); chronic serious childhood trauma, neglect, and/or abuse (14).
  • Five people were exonerated from death row in 2020, bringing the number of people exonerated from death row to 172 since 1973. In each of the five cases, prosecutorial misconduct contributed to the wrongful conviction.
  • With Colorado abolishing capital punishment this year, more than two-thirds of states (34) have either repealed the death penalty or not carried out an execution in 10 years. According to Gallup, the 43 percent of people who opposed the death penalty in 2020 is the highest level of opposition since 1966.
  • Candidates pledging systemic reforms, including reduced use or abandonment of the death penalty, won prosecutor races in several jurisdictions that have historically produced a large number of death sentences: Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH). Across the county, reform prosecutors took the helm in counties comprising more than 12 percent of the nation’s death-row population.

For previous recommended reads, go here.

We’ve recommended John Grisham’s work before, as a whole, in no small part due to his focus upon aspects of criminal defense in death penalty matters. See, “Book Recommendation: John Grisham’s Novels on Death Row and Capital Punishment.”

book cover of A Time for Mercy linked to AmazonThis fall, Mr. Grisham has released another novel, the third in his Jake Brigance series (as played by Matthew McConaughey in the movie version of Grisham’s first book, A Time to Kill).

It’s entitled A Time for Mercy, and it’s a recommended read.

The story deals with death penalty defense – and spans a time frame from the initial killing through arrest and trial to jury verdict.

A theme running through the book is something dovetailing one of Terry’s passions:  spotlighting the realities of financial support in indigent capital case defense.  In A Time for Mercy, the defense lawyer is not only facing of criticism  and ridicule because of the case, but he’s got financial woes as an added burden while he has the fiscall responsibilities of defending a death penalty case where the client is indigent.

It’s another good read from John Grisham, and a welcomed respite in these turbulent times.

Click on the image to visit Amazon.com and read more details on the book and its 12,688 ratings (4.8 stars).

On October 29, 2020, the Florida Supreme Court issued its opinion in Lawrence v. State, No. SC18-2061 (Fla. Oct. 29, 2020).  It is another controversial decision from the state’s highest court, and there has been swift reaction against it.

What is Comparative Proportionality?

Comparative proportionality involves an appellate court reviewing each sentence to “…ensure uniformity of sentencing in death penalty proceedings … [with death sentences] for only the most aggravated and least mitigated of first-degree murders.Rogers v. State, 285 So. 3d 872, 891-2 (Fla. 2019), quoting Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998).

Comparative Proportionality has existed in Florida for almost fifty years, first being recognized in 1973, but no more.  The Florida Supreme Court, in Lawrence, has determined that comparative proportionality review violates the conformity clause of article I, section 17 of the Florida Constitution.

Florida Supreme Court and the Death Penalty:  Justice Labarga’s Dissent

In a rock-solid dissent, Justice Jorge Labarga writes the following regarding the changing stance of the state High Court to capital punishment and the review of death penalty sentences in the State of Florida.

His dissent is respectfully provided here, in its entirety, for your consideration.  It reads as follows:

Today, the majority takes the most consequential step yet in dismantling the reasonable safeguards contained within Florida’s death penalty jurisprudence—a step that eliminates a fundamental component of this Court’s mandatory review in direct appeal cases.

The Majority’s Recent Decisions in Context

I cannot overstate how quickly and consequentially the majority’s decisions have impacted death penalty law in Florida. On January 23, 2020, this Court decided State v. Poole, 297 So. 3d 487 (Fla. 2020). As I noted in my dissent in Poole, despite the clearly defined historical basis for requiring unanimous jury verdicts in Florida, this Court receded from the requirement that juries must unanimously recommend that a defendant be sentenced to death. Poole, 297 So. 3d at 513 (Labarga, J., dissenting). After 2016, only the state of Alabama permitted a nonunanimous (10-2) jury recommendation.[9] Poole paved the way for Florida to return to an absolute outlier status of being one of only two states that does not require unanimity.

On May 14, 2020, this Court decided Bush v. State, 295 So. 3d 179 (Fla. 2020). In that case, this Court uprooted the long applied heightened standard of review in cases that are wholly based on circumstantial evidence. Under the heightened standard, “[e]vidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain [a] conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict.” Davis v. State, 90 So. 2d 629, 631-32 (Fla. 1956). This standard, applied for more than one hundred years, served as an important check on circumstantial evidence cases. As I noted in my dissent in Bush, while circumstantial evidence is a vital evidentiary tool in meeting the State’s burden of proof, “circumstantial evidence is inherently different from direct evidence in a manner that warrants heightened consideration on appellate review.” Bush, 295 So. 3d at 216 (Fla. 2020) (Labarga, J., concurring in part and dissenting in part). “The solemn duty imposed upon this Court in reviewing death cases more than justifies the stringent review that has historically been applied in cases based solely on circumstantial evidence.” Id. at 217.

On May 21, 2020, this Court decided Phillips v. State, 299 So. 3d 1013 (Fla. 2020). In Phillips, this Court receded from Walls v. State, 213 So. 3d 340 (Fla. 2016) (holding that Hall v. Florida, 572 U.S. 701 (2014), is to be retroactively applied). The United States Supreme Court’s decision in Hall held that Florida law, which barred individuals with an IQ score above 70 from demonstrating that they were intellectually disabled, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” Id. at 704. The Supreme Court concluded: “This Court agrees with the medical experts that when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 723. In Walls, this Court held that Hall is to be retroactively applied. The majority’s recent decision in Phillips subsequently receded from Walls.

As expressed in my dissent in Phillips, in light of the majority’s decision to recede from Walls, “an individual with significant deficits in adaptive functioning, and who under a holistic consideration of the three criteria for intellectual disability could be found intellectually disabled, is completely barred from proving such because of the timing of his legal process. This arbitrary result undermines the prohibition of executing the intellectually disabled.” Phillips, 299 So. 3d at 1025 (Labarga, J., dissenting).

In each of these cases, I dissented, and I lamented the erosion of our death penalty jurisprudence. Now today, the majority jettisons a nearly fifty-year-old pillar of our mandatory review in direct appeal cases. As a result, no longer is this Court required to review death sentences for proportionality. I could not dissent more strongly to this decision, one that severely undermines the reliability of this Court’s decisions on direct appeal, and more broadly, Florida’s death penalty jurisprudence.

Mandatory Review in Death Cases

Until today, this Court has for decades carried out its solemn responsibility to evaluate each death sentence for both the sufficiency of the evidence on which the State relied to convict the defendant, and the proportionality of the death sentence when compared with other cases. We have consistently explained: “In death penalty cases, this Court conducts an independent review of the sufficiency of the evidence.” Caylor v. State, 78 So. 3d 482, 500 (Fla. 2011) (citing Phillips v. State, 39 So. 3d 296, 308 (Fla. 2010)). Whether the evidence is sufficient is judged by whether it is competent and substantial. See Blake v. State, 972 So. 2d 839, 850 (Fla. 2007). “In conducting this review, we view the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)).

Moreover, “[i]n capital cases, this Court compares the circumstances presented in the appellant’s case with the circumstances of similar cases to determine whether death is a proportionate punishment.” Caylor, 78 So. 3d at 498 (citing Wade v. State, 41 So. 3d 857, 879 (Fla. 2010)). “In deciding whether death is a proportionate penalty, `we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.'” Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (quoting Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). “This entails `a qualitative review . . . of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.'” Id. (quoting Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998)).

“[P]roportionality review in death cases rests at least in part on the recognition that death is a uniquely irrevocable penalty, requiring a more intensive level of judicial scrutiny or process than would lesser penalties.” Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). In fact, the sufficiency of the evidence and the proportionality analyses are so fundamental to this Court’s direct appeal review that they are conducted regardless of whether the defendant challenges sufficiency and proportionality on direct appeal. See Fla. R. App. P. 9.142(a)(5) (“On direct appeal in death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”).

This Court first recognized the doctrine of proportionality in 1973 in State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973), superseded on other grounds by ch. 74-383, § 14, Laws of Fla., as stated in State v. Dene, 533 So. 2d 265, 267 (Fla. 1988), in which this Court explained:

It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present. Review by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case. No longer will one man die and another live on the basis of race, or a woman live and a man die on the basis of sex. If a defendant is sentenced to die, this Court can review that case in light of the other decisions and determine whether or not the punishment is too great. Thus, the discretion charged in Furman v. Georgia . . . can be controlled and channeled until the sentencing process becomes a matter of reasoned judgment rather than an exercise in discretion at all.

In the decades since Dixon, a robust body of case law, consisting of literally hundreds of cases, has reaffirmed this rationale and continually strengthened the reliability of this Court’s proportionality review.

While the overwhelming majority of this Court’s death penalty cases are upheld on proportionality grounds, the fact that this Court has reversed death sentences due to a lack of proportionality underscores the need for proportionality review. See, e.g., McCloud v. State, 208 So. 3d 668 (Fla. 2016)Phillips v. State, 207 So. 3d 212 (Fla. 2016)Yacob v. State, 136 So. 3d 539 (Fla. 2014)Scott v. State, 66 So. 3d 923 (Fla. 2011)Crook v. State, 908 So. 2d 350 (Fla. 2005)Williams v. State, 707 So. 2d 683 (Fla. 1998)Jones v. State, 705 So. 2d 1364 (Fla. 1998)Voorhees v. State, 699 So. 2d 602 (Fla. 1997)Curtis v. State, 685 So. 2d 1234 (Fla. 1996)Sinclair v. State, 657 So. 2d 1138 (Fla. 1995). Yet, I emphasize that not only is the reversal of a death sentence on proportionality grounds a rare occurrence, when a death sentence is reversed as disproportionate, the result is not a “get out of jail free” card. It means that the death penalty is not a proportionate punishment in a particular case, and that instead, the statutory maximum punishment for first-degree murder, a sentence of life imprisonment, is what the law requires.

Today’s decision by the majority, striking proportionality review from this Court’s mandatory review in death penalty appeals, leaves only the sufficiency analysis. In removing this fundamental component of proportionality review, the majority’s decision threatens to render this Court’s initial review of death sentences an exercise in discretion.

Proportionality Review is Consistent with the Eighth Amendment

“The concept of proportionality is central to the Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2011). Contrary to the conclusion reached by the majority, I view this Court’s lengthy history of conducting proportionality review as entirely consistent with the Eighth Amendment as interpreted by the United States Supreme Court, and thus, not a violation of the conformity clause contained in article I, section 17 of the Florida Constitution. Even though the United States Supreme Court concluded in Pulley v. Harris, 465 U.S. 37 (1984), that proportionality review was not constitutionally mandated, the Supreme Court acknowledged proportionality review as “an additional safeguard against arbitrarily imposed death sentences.” Id. at 50.

Thus, I disagree with the majority’s reasoning that because the Supreme Court does not expressly mandate proportionality review, Florida’s conformity clause forbids it. The Supreme Court recognized proportionality review as an “additional safeguard” against the very thing the Eighth Amendment prohibits— arbitrarily imposed death sentences. As observed by Justice Brennan in his dissent in Pulley:

Disproportionality among sentences given different defendants can only be eliminated after sentencing disparities are identified. And the most logical way to identify such sentencing disparities is for a court of statewide jurisdiction to conduct comparisons between death sentences imposed by different judges or juries within the State. This is what the Court labels comparative proportionality review. Although clearly no panacea, such review often serves to identify the most extreme examples of disproportionality among similarly situated defendants. At least to this extent, this form of appellate review serves to eliminate some of the irrationality that currently surrounds imposition of a death sentence. If only to further this limited purpose, therefore, I believe that the Constitution’s prohibition on the irrational imposition of the death penalty requires that this procedural safeguard be provided.

Pulley, 465 U.S. at 70-71 (Brennan, J., dissenting) (citation omitted).

The United States Supreme Court’s acknowledgment of proportionality as an additional safeguard—combined with the fact that the Supreme Court has not held proportionality review unconstitutional—affirms that in this case, the majority could well have concluded that proportionality does not run afoul of the conformity clause. Instead, yet again placing Florida outside of the majority of death penalty states, the majority has chosen to construe the United States Supreme Court’s reasoning as prohibiting Florida’s decades old proportionality review. I could not disagree more.

Proportionality Review in Other States

Further supporting my conclusion that the majority’s decision is a highly unfortunate departure from settled law is the fact that proportionality review is conducted in a majority of other death penalty states. Twenty-five states currently impose the death penalty.[10] Sixty percent of those twenty-five states, not including Florida, conduct a proportionality review. In fourteen of those states, the review is statutorily imposed: Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, Ohio, South Carolina, South Dakota, Tennessee, and Virginia.[11]

Similar to Florida (prior to today’s decision), appellate review of death sentences in Utah involves a proportionality review despite the lack of a statutory requirement. State v. Honie, 57 P.3d 977, 988 (Utah 2002) (“Despite the fact that proportionality review is not required, either by the Utah or federal constitutions or by statute, we have chosen to assume the responsibility of reviewing death sentences for disproportionality.”); State v. Wood, 648 P.2d 71, 77 (Utah 1982) (“In the penalty phase, it is our duty to determine whether the sentence of death resulted from error, prejudice or arbitrariness, or was disproportionate.”); see also State v. Maestas, 299 P.3d 892, 987 (Utah 2012)State v. Andrews, 574 P.2d 709, 710-11 (Utah 1977)State v. Pierre, 572 P.2d 1338, 1345 (Utah 1977).

The Utah Supreme Court has emphasized that a proportionality review “means that this Court will not allow sentencing authorities to impose the death penalty in an invidious fashion against particular types of persons or groups of persons or in a fashion disproportionate to the culpability in a particular case . . . that over time, as this Court becomes aware of a general pattern in the imposition of the death penalty in this state, the Court may set aside death sentences that fall outside the general pattern and thus reflect an anomaly in the imposition of the death penalty.” State v. Holland, 777 P.2d 1019, 1025-26 (Utah 1989). The court stated that this review function “substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.” State v. Pierre, 572 P.2d 1338, 1345 (Utah 1977) (quoting Gregg v. Georgia, 428 U.S. 153, 206 (1976)).

Even in states that statutorily mandate proportionality review, several state supreme courts have emphasized its importance. The Supreme Court of Virginia explained: “The purpose of our comparative [proportionality] review is to reach a reasoned judgment regarding what cases justify the imposition of the death penalty. We cannot insure complete symmetry among all death penalty cases, but our review does enable us to identify and invalidate a death sentence that is `excessive or disproportionate to the penalty imposed in similar cases.'” Orbe v. Commonwealth, 519 S.E.2d 808, 817 (Va. 1999) (quoting Va. Code Ann. § 17.1-313(C)(2)); see also Lawlor v. Commonwealth, 738 S.E.2d 847, 894-95 (Va. 2013).

Similarly, the Tennessee Supreme Court has recognized that “the purposes of comparative proportionality review are to eliminate the possibility that a person will be sentenced to death by the action of an aberrant jury and to guard against the capricious or random imposition of the death penalty,” and that “comparative review of capital cases insures rationality and consistency in the imposition of the death penalty.” State v. Bland, 958 S.W.2d 651, 665 (Tenn. 1997) (citing State v. Barber, 753 S.W.2d 659, 665-66 (Tenn. 1988)); see also State v. White, 565 S.E.2d 55, 68 (N.C. 2002) (recognizing that “[p]roportionality review also acts `[a]s a check against the capricious or random imposition of the death penalty.'” (quoting State v. Barfield, 259 S.E.2d 510, 544 (N.C. 1979))); State v. Ramsey, 864 S.W.2d 320, 328 (Mo. 1993) (stating that proportionality review “is designed by the legislature as an additional safeguard against arbitrary and capricious sentencing and to promote evenhanded, rational and consistent imposition of death sentences.”); State v. Kyles, 513 So. 2d 265, 276 (La. 1987) (stating that although not constitutionally required, the court “conducts a proportionality review as a further safeguard against arbitrariness”).

Without proportionality review, each death sentence stands on its own. Failing to consider a death sentence in the context of other death penalty cases impairs the reliability of this Court’s decision affirming that sentence.

Conclusion

In line with a vision consistent with evolving standards of decency, as envisioned by the United States Supreme Court in Trop v. Dulles, 356 U.S. 86, 101 (1958), our state’s jurisprudence has in many instances provided its citizenry with greater rights and protections than the minimum required by the United States Supreme Court, the federal government, and other states. In this instance, our state has consistently done just that, by requiring a proportionality review in every death penalty case, thus providing “an additional safeguard against arbitrarily imposed death sentences.” Pulley, 465 U.S. at 50. As noted earlier, sixty percent of the twenty-five states that currently impose the death penalty require a proportionality review.

Sadly, this long-standing jurisprudential approach has been significantly, if not completely, repudiated by this Court’s various opinions, beginning with its decision in Poole, followed by Bush and Phillips, and continuing with today’s decision to discontinue conducting a proportionality analysis in each death penalty appeal.

I deeply, regretfully, and most respectfully dissent.