|whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. In conducting such review the court, upon the request of the defendant, in addition to any other determination, shall review whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases by virtue of the race of the defendant or a victim of the crime for which the defendant was convicted.
|Mr. Justice Douglas condemned "a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants * * * should die or be imprisoned. Under these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one man or of 12" . . . . Mr. Justice Stewart was also of the view that the sentencing practices provided by the statutes in question -- vesting juries or judges with discretion to determine whether the penalty should be death or life imprisonment -- offend against the prohibition of the Eighth Amendment. . . . "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." And Mr. Justice White -- addressing himself to the question whether capital punishment statutes are unconstitutional when "the legislature does not itself mandate the penalty in any particular class or kind of case (that is, legislative will is not frustrated if the penalty is never imposed), but delegates to judges or juries the decisions as to those cases, if any, in which the penalty will be utilized" -- reached the conclusion that "the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." In short, added Justice White, "past and present legislative judgment with respect to the death penalty loses much of its force when viewed in light of the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime."
|In any prosecution in which the people seek the sentence of death, the people shall within one hundred and twenty days of the defendant’s arraignment upon an indictment charging the defendant with murder in the first degree, serve upon the defendant and file with the court in which the indictment is pending a written notice of intention to seek the death penalty.
|We were concerned about the type of review in the Court of Appeals. The Court of Appeals has broad interests of justice review. It has jurisdiction to deal with proportionality and racial justice, a way of looking at prosecutorial discretion to decide whether or not it was appropriate to bring an action or not bring an action based on what prosecutors do -- decisions from which guidelines will be developed.
|"I do believe that there will come a point in time in the future -- and probably the not-too-distant future -- where the public will begin to say, ‘Hey, wait a minute. Why should we have a law on the books if nobody is going to enforce it, or if its enforced in such rare instances that it almost makes no difference at all,’" Vacco said. "We haven’t arrived there yet, but perhaps we will reach a point where we need to take a look at the law itself," Vacco said, adding he wanted to choose his words carefully because he would have to defend the constitutionality of the statute. "My dilemma is how to change to the law without affecting the cases in play," he said. "Probably, it will take a test case to resolve the issue, and I hope we don’t see the statute struck down on those grounds. "Any fix would probably have to come after a Court of Appeals ruling on [geographic] proportionality," he said.