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TURNER v. CALIFORNIA , 498 U.S. 1053 (1991)

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U.S. Supreme Court

TURNER v. CALIFORNIA , 498 U.S. 1053 (1991)

498 U.S. 1053 112 L.Ed.2d 787

Thaddaeus Louis TURNER, petitioner,
No. 90-6047

Supreme Court of the United States

January 14, 1991

The petition for a writ of certiorari is denied.

Justice MARSHALL, dissenting.

Petitioner was convicted in California state court of first-degree murder and sentenced to death. On appeal, he argued that application of the death penalty in this case was arbitrary because it was excessive when compared with penalties imposed in similar cases. The California Supreme Court noted that petitioner "present[ed] an elaborate survey of published [ California] Court of Appeal decisions to demonstrate the hypothesis that many first de-

Page 498 U.S. 1053, 1054

gree murderers of equal or greater culpability have received sentences less than death." 50 Cal.3d 668, 718, 268 Cal.Rptr. 706, 735, 789 P.2d 887, 916 (1990). However, the State Supreme Court refused to review petitioner's submissions, declaring that "[c]omparative proportionality review is not constitutionally required." Ibid. Although the court cited its own prior decisions for that conclusion, ibid., those precedents ultimately derive from this Court's opinion in Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). See People v. Rodriguez, 42 Cal. 3d 730, 778, 230 Cal.Rptr. 667, 697-698, 726 P.2d 113, 143-144 (1986) ( relying on Pulley in rejecting proportionality review). In Pulley, the Court sustained California's capital punishment statute against Eighth Amendment attack, rejecting the claim that the "Eighth Amendment . . . requires a state appellate court, before it affirms a death sentence, to compare the sentence in the case before it with the penalties imposed in similar cases if requested to do so by the prisoner." 465 U.S., at 43-44, 104 S.Ct., at 876.

I dissented from the decision in Pulley, and I continue to believe that it was wrongly decided. The singling out of particular defendants for the death penalty when their crimes are no more aggravated than those committed by numerous other defendants given lesser sentences is unacceptable. As Justice Brennan pointed out in his dissent in Pulley, comparative proportionality review, at the very least, "serves to eliminate some of the irrationality that currently surrounds imposition of a death sentence" and "can be administered without much difficulty by a court of statewide jurisdiction." 465 U.S., at 71, 104 S.Ct., at 890. In the present case, petitioner has not merely "requested" review for comparative proportionality, cf. id., at 44, 104 S.Ct., at 876, but has ( in the lower court's own words) "present[ed] an elaborate survey of published Court of Appeal decisions," allegedly showing that "many first degree murderers of equal and greater culpability have received sentences less than death." 50 Cal.3d, at 718, 268 Cal.Rptr., at 735, 789 P.2d, at 916. I cannot understand how this Court can reconcile a refusal to review such evidence with our capital jurisprudence.

As we have often recognized, "[b]ecause of the uniqueness of the death penalty, . . . it [cannot] be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner." Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (plurality opinion). Indeed, we have "insiste[d] that capital punishment be imposed fairly, and with reasonable consistency, or not at [498 U.S. 1053, 1055]

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