"The Eighth Amendment Power to Discriminate"

The title of this post is the title of this new paper authored by Kathryn Miller now available via SSRN. Here is its abstract:

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences.  While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing.  The expansive discretion that the requirement confers on overwhelmingly white juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.

While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion.  This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it.  It proposes that states employ specific jury instructions that (1) require jurors to consider certain types of evidence as legally mitigating, (2) address the historically racist application of the death penalty, and (3) permit unfettered discretion solely in the direction of leniency.  Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing.