Could Idaho repeal the proportionality-review piece of its automatic death-sentence review statute without making the state's death penalty unconstitutional?

Plain-English summary

Senator Roger Madsen asked the AG whether the legislature could amend Idaho Code § 19-2827, the statute setting up automatic Idaho Supreme Court review of death sentences, to remove the comparative proportionality piece. The current text required the court to determine, for every death sentence, "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant," and required the court to include in its decision "a reference to those similar cases which it took into consideration." Senator Madsen's draft would have shortened the inquiry to "[w]hether the sentence of death is excessive."

The AG (writing for AG Larry EchoHawk) said the change would be constitutional. The key authority was the U.S. Supreme Court's decision in Pulley v. Harris, 465 U.S. 37 (1984), which held that comparative proportionality review (comparing each death sentence to sentences in similar cases) is not constitutionally required by the Eighth Amendment. What the Eighth Amendment requires is that the state's overall capital sentencing scheme adequately channel discretion through narrowing aggravating factors, individualized consideration of mitigating factors, and meaningful appellate review for arbitrariness. Comparative proportionality is one tool to ensure that, but it is not the only one, and it is not constitutionally mandated.

The opinion distinguished two senses of "proportionality." The traditional sense (Solem v. Helm-style abstract proportionality between crime and punishment) is constitutionally required and asks whether a particular punishment is excessive in relation to the offense. The comparative sense (whether this defendant's death sentence is consistent with sentences imposed in similar cases) is what Pulley v. Harris held is not constitutionally required. Senator Madsen's draft would remove only the comparative review, while preserving the abstract excessiveness inquiry. The AG concluded that removal would not render Idaho's death penalty unconstitutional.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the difference between abstract and comparative proportionality?

Abstract proportionality asks whether the punishment fits the crime in some general sense: is death a constitutionally permissible response to this offense? The Supreme Court has held that death is permissible for first-degree murder with aggravating factors, but disproportionate for non-homicide rape (Coker v. Georgia (1977)) and disproportionate for accomplice liability without intent to kill (Enmund v. Florida (1982)). Comparative proportionality asks something different: among all the death sentences this state has imposed for similar crimes, is this defendant's sentence consistent with the pattern? Pulley v. Harris held that comparative proportionality is not constitutionally required.

Why did some states adopt comparative proportionality review anyway?

After Furman v. Georgia (1972) struck down then-existing death-penalty statutes for arbitrariness, some states adopted comparative proportionality review as a belt-and-suspenders tool to demonstrate to courts that their new schemes were not arbitrary. The Supreme Court approved that approach but in Pulley v. Harris held it was not constitutionally required. States that have included it have done so as a policy matter, often to ensure that geographic, racial, or socioeconomic patterns in death sentencing do not produce arbitrary results.

What did the practical removal mean for Idaho cases?

The Idaho Supreme Court would no longer have been required to compare each death sentence to other death and non-death sentences in similar Idaho cases. The court would still review the sentence for excessiveness in the abstract sense (does death fit this crime?), and would still review the trial court's findings on aggravators, mitigators, and ineffective assistance. The change would streamline appellate review and remove a source of remand orders, but it would not change the substantive standards for imposing or affirming a death sentence.

Did the legislature actually pass the amendment?

The opinion answers a constitutional question, not a political one. Whether the 1994 or later Idaho Legislature actually amended § 19-2827 is a separate question that requires checking session-law histories. The AG's role was to confirm the constitutional space, not to advocate for or against the change.

Has the constitutional space shifted since 1993?

Pulley v. Harris remains good law on comparative proportionality. The broader Eighth Amendment death-penalty doctrine has continued to evolve (Atkins v. Virginia (2002) on intellectual disability, Roper v. Simmons (2005) on juvenile offenders, Kennedy v. Louisiana (2008) on non-homicide cases). Comparative proportionality review specifically has not been re-mandated. Anyone working in this area should check current Idaho statute and Idaho Supreme Court doctrine.

Background and statutory framework

Idaho Code § 19-2827 sets out the procedures for automatic Idaho Supreme Court review of every death sentence. Subsection (c) directs the court to determine three things: whether the sentence was imposed under the influence of passion, prejudice, or arbitrary factors; whether the evidence supports the trial court's findings of statutory aggravating circumstances; and whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. Subsection (e) directs the court to include in its decision a reference to the similar cases it considered.

The proportionality piece in subsection (c)(3) and the case-listing piece in subsection (e) were the parts Senator Madsen's amendment targeted. The remaining elements (passion/prejudice review, sufficiency-of-evidence review on aggravators, abstract excessiveness review) would remain. The AG's analysis confirmed that the post-amendment statute would still satisfy the Eighth Amendment's requirement of meaningful appellate review.

Citations

• Idaho Code § 19-2827(c), (e)
• Pulley v. Harris, 465 U.S. 37 (1984)
• Furman v. Georgia, 408 U.S. 238 (1972) (general background)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP93-12.pdf

Original opinion text

ATTORNEY GENERAL OPINION NO. 93-12
To: Honorable Roger Madsen
Idaho State Senate
7842 Desert Ave.
Boise, ID 83709
Per Request for Attorney General's Opinion
QUESTION PRESENTED
May the statute pertaining to automatic review of death penalties be amended in
such a way as to delete the current provisions mandating proportionality review without
rendering Idaho's capital sentencing scheme unconstitutional?
CONCLUSION
Such an amendment to the current law would not jeopardize Idaho's capital
sentencing scheme and would therefore be constitutional.
ANALYSIS
I.

Introduction

On October 8, 1993, you requested an opinion from this office regarding Idaho
Code § 19-2827(c)(3). Specifically, you wanted to know whether the deletion of the
"proportionality review" provisions of the subsection of the statute pertaining to
automatic review of death penalties would be constitutional.
The current statute reads:
(c)
With regard to the sentence the court shall determine: . . . (3)
Whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the
defendant.
You have proposed a bill which would amend the statute to read:
(c)
With regard to the sentence the court shall determine: . . . (3)
Whether the sentence of death is excessive.

In addition, you have suggested deletion of the first sentence of subsection (e), which
reads:
(e)
The court shall include in its decision a reference to those
similar cases which it took into consideration.
Therefore, the issue you have presented is whether "proportionality review" is
required by either the Idaho or United States Constitutions in order to ensure that Idaho's
death penalty is valid.
II.

Proportionality in General

In beginning an analysis of this issue it is important to note that there are two
mutually exclusive concepts of proportionality. The first and more traditional form in
which proportionality is discussed deals with "an abstract evaluation of the
appropriateness of a sentence for a particular crime." Pulley v. Harris, 465 U.S. 37, 4243 (1984). In this sense, the discussion centers around whether a sentence is cruel and
unusual, considering the gravity of the offense and the severity of the penalty. As part of
the analysis, sentences imposed for other crimes and sentencing practices of other
jurisdictions are looked to. Hence, the federal courts have not hesitated to strike down
punishments which have been found to be inherently disproportionate and, therefore,
unconstitutional, when imposed for a particular crime or category of crime. See, e.g.,
Enmund v. Florida, 458 U.S 782 (1982); Coker v. Georgia, 433 U.S. 584 (1977).
The Idaho court has also spoken in terms of this type of proportionality when
discussing the constitutionality of a sentence under art. 1, § 6, of the Idaho Constitution:
[I]t is generally recognized that imprisonment for such a length of time as
to be out of proportion to the gravity of the offense committed, and such as
to shock the conscience of reasonable men, is cruel and unusual within the
meaning of the constitution.
State v. Evans, 73 Idaho 50, 58, 245 P.2d 788, 792 (1952).
The death penalty is not in all cases a disproportionate penalty in this sense.
Gregg v. Georgia, 428 U.S. 153 (1976).
The proportionality review required by Idaho Code § 19-2827 and by some other
states is of a different sort. "This sort of proportionality review presumes that the death
sentence is not disproportionate to the crime in the traditional sense. It purports to
inquire instead whether the penalty is nonetheless unacceptable in a particular case
because disproportionate to the punishment imposed on others convicted of the same

crime." Pulley v. Harris, 465 U.S. at 43. This second sort of review, known as
comparative proportionality, is the subject of the remainder of this opinion.
III.

Comparative Proportionality and the Federal Constitution

The issue of whether comparative proportionality review is required by the Eighth
Amendment to the United States Constitution (concerning cruel and unusual punishment)
was squarely presented in Pulley v. Harris, 465 U.S. 37 (1984). In that case, a man
convicted of murdering two boys in order to steal their car (Harris) challenged
California's scheme for the automatic appellate review of death penalties. Harris claimed
that the scheme was flawed because it did not require comparative proportionality
review. Therefore, the argument went, the death penalty could be imposed wantonly or
freakishly in violation of the United States Constitution.
The United States Supreme Court first noted that "[n]eedless to say, that some
schemes providing proportionality review are constitutional does not mean that such
review is indispensable." Id. at 44-45. The fact that the Court had approved of earlier
death penalty review schemes containing comparative proportionality review was not to
be understood as mandating such review.
The Court then noted that it had already upheld a death penalty sentencing scheme
which did not contain comparative proportionality review in Jurek v. Texas, 428 U.S.
262 (1976). The Court found in Jurek that Texas' narrowing of capital murders to those
containing at least one aggravating circumstance, coupled with a separate sentencing
hearing which allowed for whatever mitigating circumstances the defendant could
adduce, provided adequate guidance to the sentencer. In addition, automatic judicial
review provided a means to promote the evenhanded and consistent imposition of the
death penalty.
The Court in Pulley then compared the California scheme to that approved in
Jurek and found it to be constitutional because it, too, required the finding of at least one
special aggravating circumstance beyond a reasonable doubt, and because that finding
would be reviewed.
The Court concluded there was no basis in prior law to conclude that comparative
proportionality review was required, and that schemes such as California's that
adequately channel a sentencer's discretion are not violative of the Eighth Amendment
despite the lack of such review. Since Pulley, the Supreme Court has reaffirmed the
notion that comparative proportionality review is not constitutionally required. See
McCleskey v. Kemp, 481 U.S. 279 (1987), and Walton v. Arizona, 497 U.S. 639 (1990).

In Beam v. Paskett, 744 F. Supp. 958, (D. Idaho 1990), a man convicted of first
degree murder and sentenced to death in Idaho (Beam) filed a petition for habeas corpus
in federal district court. Among Beam's claims was the allegation that his federal rights
were violated because the guidelines set forth in Idaho Code § 19-2827(c)(3) failed to
"minimize the risk of arbitrary or capricious decisions in cases having similar factual
circumstances." Id. at 960. This claim was based upon his co-defendant's sentence of
life imprisonment.
The court reviewed Idaho's capital sentencing scheme and found it to be
constitutional because it adequately channels the sentencer's discretion. Noting that
Pulley held that the existence of other safeguards rendered comparative proportionality
review "superfluous," the court found that the mere fact that Beam's co-defendant did not
receive the death penalty did not establish that Idaho's capital scheme operated in an
unconstitutional manner. Id. at 960.
From these authorities, it is clear that comparative proportionality as mandated by
Idaho Code § 19-2827 is not required by the United States Constitution. Idaho's capital
scheme without comparative proportionality would still adequately channel a judge's
discretion at sentencing because the court would still have to find at least one of several
aggravating factors to exist beyond a reasonable doubt. Idaho Code § 19-2515(g). In
addition, the court would have to find that all of the mitigating circumstances presented
by the defendant taken together did not outweigh each of the aggravating factors
considered separately. Idaho Code § 19-2515(c). State v. Charboneau, 116 Idaho 129,
774 P.2d 299 (1989). Further, the Idaho Supreme Court would still be mandated to
determine whether: 1) the sentence was the result of passion, prejudice or any other
arbitrary factor; 2) whether the evidence supports the finding of an aggravating factor;
and 3) whether the sentence is excessive. Idaho Code § 19-2827.
IV.

Comparative Proportionality and the Idaho Constitution

The language of art. 1, § 6, of the Idaho Constitution pertaining to cruel and
unusual punishment is identical to the Eighth Amendment. However, this does not mean
that the two constitutional provisions will be identically interpreted. The Idaho courts
have in the past departed from federal constitutional doctrine in order to enhance a
defendant's rights under the Idaho Constitution, primarily in the area of search and
seizure. State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992); State v. Thompson, 114
Idaho 746, 760 P.2d 1162 (1988).
On the other hand, Idaho's guarantee against cruel and unusual punishment, in
particular, has never been interpreted by any Idaho appellate court to differ significantly
from the federal guarantee. As a result, Idaho has only engaged in comparative
proportionality analysis when it appeared that the federal courts required it under the

Eighth Amendment. For example, in State v. Broadhead, 120 Idaho 141, 814 P.2d 401
(1991), a second degree murder case, the court engaged in a comparative proportionality
discussion because of the apparent requirement of Solem v. Helm, 463 U.S. 277 (1983),
to so analyze the case.
Since Broadhead, the United States Supreme Court has refined the law regarding
the Eighth Amendment to make it clear that comparative proportionality is not required
when determining if a case is cruel and unusual. Harmelin v. Michigan, ___ U.S. ___,
111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). As a result, the Idaho Supreme Court
specifically overruled Broadhead "to the extent it relies on Solem." State v. Brown, 121
Idaho 385, 394, 825 P.2d 482 (1992). The court went on to say:
We limit our proportionality analysis to death penalty cases and, under the
Idaho Constitution as contemplated in State v. Evans, to those cases which
are "out of proportion to the gravity of the offense committed" in the cruel
and unusual punishment setting similar to the "grossly disproportionate"
analysis of the eighth amendment. . . . The lack of objective standards for
evaluating differing terms of imprisonment . . . gives proportionality review
outside these two limited areas the potential of essentially allowing, if not
requiring, this Court to second guess the trial court's discretionary
determination of the criminal sentence that best fits the criminal defendant
and the crime.
121 Idaho at 394. In other words, the court found no independent state constitutional
basis for engaging in comparative proportionality in reviewing sentences.
As noted previously, the reason the court engages in proportionality analysis in the
death penalty setting is because of the statutory mandate. There appears to be no
independent constitutional ground for a system that would "allow, if not require" the
court to second guess a district court's death penalty sentence other than the statute. If the
statute were to be amended to delete comparative proportionality, it would be unlikely in
the extreme that a principled basis for proportionality could be found under the state
constitution.
V.

Conclusion

In summary, it is the opinion of this office that the proposed amendment to Idaho
Code § 19-2827 deleting reference to comparative proportionality would not render
Idaho's death penalty scheme unconstitutional, under either the federal or state
constitutions.
AUTHORITIES CONSIDERED

1.

U.S. Constitution:
Eighth Amendment.

2.

Idaho Constitution:
Art. 1, § 6.

3.

Idaho Code:
§ 19-2515.
§ 19-2827.

4.

Idaho Cases:
State v. Broadhead, 120 Idaho 141, 814 P.2d 401 (1991).
State v. Brown, 121 Idaho 385, 825 P.2d 482 (1992).
State v. Charboneau, 116 Idaho 129, 774 P.2d 299 (1989).
State v. Evans, 73 Idaho 50, 245 P.2d 788 (1952).
State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992).
State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988).

5.

Other Cases:
Beam v. Paskett, 744 F. Supp. 958 (D. Idaho 1990).
Coker v. Georgia, 433 U.S. 584 (1977).
Enmund v. Florida, 458 U.S. 782 (1982).
Gregg v. Georgia, 428 U.S. 153 (1976).
Harmelin v. Michigan, ___ U.S. ___, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991).
Jurek v. Texas, 428 U.S. 262 (1976).

McCleskey v. Kemp, 481 U.S. 279 (1987).
Pulley v. Harris, 465 U.S. 37 (1984).
Solem v. Helm, 463 U.S. 277 (1983).
Walton v. Arizona, 497 U.S. 639 (1990).
DATED this 29th day of November, 1993.
LARRY ECHOHAWK
Attorney General
Analysis by:
MICHAEL KANE
Deputy Attorney General
Chief, Criminal Law Division