Gregg's case, decisions upholding and rejecting challenges to death penalty statutes have divided the Supreme Court, and have led at times to sharply-worded judgments.[1] The decisions ultimately turned on the votes of those judges who considered the nature of the discretion given to the sentencing authority to be the crucial factor.
[42]Statutes providing for mandatory death sentences, or too little discretion in sentencing, have been rejected by the Supreme Court because they do not allow for consideration of factors peculiar to the convicted person facing sentence, which may distinguish his or her case from other cases.[2] For the same reason, statutes which allow too wide a discretion to judges or juries have also been struck down on the grounds that the exercise of such discretion leads to arbitrary results.[3] In sum, therefore, if there is no discretion, too little discretion, or an unbounded discretion, the provision authorising the death sentence has been struck down as being contrary to the Eighth Amendment; where the discretion has been "suitably directed and limited so as to minimise the risk of wholly arbitrary and capricious action",[4] the challenge to the statute has failed.[5]
Arbitrariness and Inequality
[43]Basing his argument on the reasons which found favour with the majority of the United States Supreme Court in Furman v. Georgia, Mr Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional.
[44]Section 277 of the Criminal Procedure Act provides:
Sentence of death
(1) The sentence of death may be passed by a superior court only and only in the case of a conviction for— (a) murder; (b) treason committed when the Republic is in a state of war;
- ↑ See, e.g., the concurring opinion of Scalia, J., in Callins v. Collins, supra note 62; the opinions of Rehnquist, J., concurring in part and dissenting in part, in Lockett v. Ohio, supra note 66, at 628 et seq., and dissenting in Woodson v. North Carolina, supra note 66, at 308 et seq.
- ↑ Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976), reh'g denied 429 U.S. 890 (1976); Lockett v. Ohio, 438 U.S. 586 (1978) (system for imposing death sentences invalid to the extent it precludes consideration by sentencing jury or judge of potentially mitigating factors).
- ↑ See Green v. Georgia 442 U.S. 95 (1979).
- ↑ Gregg v. Georgia, supra note 60, at 189.
- ↑ Id. See also, Proffitt v. Florida, 428 U.S. 242 (1976). The nature of the offence for which the sentence is imposed is also relevant. Coker v. Georgia, 433 U.S. 584 (1977).
