Joseph Duncan, who is awaiting federal trial for capital murder, will test several constitutional arguments.
The first issue is the need for proportionality review. As the attorneys for Duncan point out, federal death sentences are so rare (three executions in 40 years) that they must be arbitrary. The basis for this criticism raises the issue of proportionality - has a death sentence been imposed on individuals with similar backgrounds who commit similar crimes? Perhaps even more telling is the issue of worse killers (past criminal deeds) or worse cases (more victims, torture, depravity of the mind, etc.) not receiving a death sentence. Is it fair that an individual is more or less likely to receive a death sentence simply because of where the crime was committed, the race of the victim, or if appointed counsel represented the defendant?
Proportionality review was part of the plan approved by the U.S. Supreme Court in Gregg v. Georgia. In 1984, The Court declared that there was no constitutional requirement for proportionality review in Pulley v. Harris. So the states and the federal government have left it to lawyers, journalists, and social scientists to point out disparities in the meting out of capital sentences. Of course they refuse to even review this sort of evidence because they don't have to.
Another issue raised by Duncan's attorneys deals with the issue of one of the standard aggravators listed in most state capital sentencing statutes - the so-called HAC aggravator: heinous, atrocious and cruel. The same aggravator is is also a part of the federal statute. Basically, the jury can consider a death sentence if the killing was heinous, atrocious, and cruel. The problem - isn't every killing heinous, atrocious, and cruel? I don't know of a good way to be a murder victim. Our research in Tennessee suggested that juries tended to find the HAC aggravator more frequently when the victim was white.
So the problem with aggravators like HAC is that without proportionality review, we are back to the pre-Furman situation of imposing death sentences in a manner akin to being struck by lightening.