The Horns of a Constitutional Dilemma

In Gregg v. Georgia (1976), the Supreme Court lifted its moratorium on capital punishment that had prevailed since Furman v. Georgia (1972), and at the same time defined a standard that death penalty schemes would need to meet. First the scheme would have to provide objective criteria by which to judge death penalty cases, and those criteria would need to be enforced by appellate courts. Second, though, the scheme also had to allow the sentencer to take into consideration the "character and record" of the individual defendant. This is meant as a limiting factor as well, i.e., only cases that a) meet the objective criteria and b) do not have mitigating "character and record" circumstances are viable death-penalty cases. I'm sympathetic to this second part, both out of general "the fewer executions the better" bias and because I think it makes a certain amount of sense. But I also think that if you're going to insist upon that standard then you hit rather sharply against the Equal Protection Clause. Because, remember, this second standard (especially when combined with later rulings requiring a jury verdict in favor of death) requires as a necessary precondition to the state's killing a defendant is for the jury to declare that it doesn't really like the guy. If the jury did like the guy, it would be bound to not kill him. So in a very real sense one of the criteria for whether the state can execute you is, "will twelve random citizens find you sufficiently unappealing that they are fine with killing you?" That strikes me as a standard that just doesn't even claim to respect the notion of equal protection of the laws. Less appealing people, which as a matter of absolute fact will tend to include non-white people and relatively tough-looking men, are made much more likely to have the state kill them. So I think that by insisting on this very sensible restriction on capital punishment the Court has actually banned any and all forms of the death penalty that can come close to meeting the Equal Protection Clause's standards. In other words, the death penalty ought to be unconstitutional, even if you agree with Gregg.