Title: The Proportionality Review of Capital Cases By State High Courts after Gregg: Only “The Appearance of Justice”?
Author: Leigh B. Bienen
Publisher: Journal of Criminal Law and Criminology
Issue: Volume 87, Issue 1, pp. 130-314
Description: Both the seriousness of the crime and the economic health of the county influence decisions to on how to treat a potentially death eligible capital case. Poorer counties tend to prosecute a smaller proportion of their capital cases, while counties with more resources and criminal investigators prosecute more and receive more encouragement from the community to do so. A murder victim in a more prosperous community is valued more than in a poorer one. Results of the Proportionality Review Project of the Supreme Court of New Jersey are presented.
Much of the discussion is designed to explain the process of record-gathering and the methods of analyses, both of science and law, that can be used to conduct proportionality review and to assess the relevance of the data to system-wide claims of unconstitutional infliction of the death penalty ….
Although we recognize that proportionality is not a scientific determination, we have attempted to make our determination as precise in terms of their bases and reasoning and as objective as possible. We have used scientific and statistical measures,when helpful, although we recognize that a value judgment is built into practically every measurement. A life is at stake, and although some degree of subjective value judgment may be required,we have attempted to make those judgments explicit so that they can be analyzed and tested against whatever objective measurements are applicable…