[1]  McNabb v. United States, 318 U.S. 332, 347 (1943). 

[2]  See infra section IV.B.

[3]  See infra section IV.B.

[4]  See infra section IV.B. 

[5]  See infra Part III. 

[6]  See infra Part III.                                 

[7]  Neb. Rev. Stat. § 29-2521.03 (Cum. Supp. 2020)

[8]  State v. Palmer, 224 Neb. 282, 327–28, 399 N.W.2d 706, 736 (1986) (“Therefore, no other case but a death sentence case can be said to be a case similar to that under review.”).

[9]  See Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring) (“That conclusion, as I have said, is that the death penalty is exacted with great infrequency even for the most atrocious crimes and that there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”).

[10]  U.S. Const. amend. VIII.

[11]  See, e.g., Robinson v. California, 370 U.S. 660, 666 (1962) (holding that a criminal sentence punishing a disease was an “infliction of cruel and unusual punishment in violation of the Eight and Fourteenth Amendments.”); Powell v. Texas, 392 U.S. 514, 532 (1968) (finding that a state statute that criminalized public intoxication did not violate the Eighth Amendment).

[12]  Compare Pulley v. Harris, 465 U.S. 37 (1984) (holding that comparative proportionality is not constitutionally required); with Woodson v. North Carolina, 428 U.S. 280 (1976) (applying inherent proportionality to an Eighth Amendment analysis).

[13]  Miller v. Alabama, 567 U.S. 460, 470 (2012); see Barry Latzer, The Failure of Comparative Proportionality Review of Capital Cases (With Lessons From New Jersey), 64 Alb. L. Rev. 1161, 1166–67 (2001) (referring to inherent proportionality as “retributive” review or “traditional” proportionality review).

[14]  See, e.g., Coker v. Georgia, 433 U.S. 584 (1977) (finding that the imposition of the death penalty in a rape case is always disproportionate and inherently violates the Eighth Amendment).

[15]  See, e.g., Graham v. Florida, 560 U.S. 48, 59–60 (2010) (“the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive.”); Steven M. Sprenger, Comment, A Critical Evaluation of State Supreme Court Proportionality Review in Death Sentence Cases, 73 Iowa L. Rev. 719, 727 (1988).

[16]  Furman v. Georgia, 408 U.S. 238, 239–40 (1972) (per curiam); contra Bucklew v. Precythe, 587 U.S. 119, 129 (2019) (“The Constitution allows capital punishment. In fact, death was ‘the standard penalty for all serious crimes’ at the time of the founding. Nor did the later addition of the Eighth Amendment outlaw the practice.” (internal citations omitted)).

[17]  See Furman, 408 U.S. at 249–51 (Douglas, J., concurring) (finding the death penalty violated the Eighth Amendment because of the unequal imposition of death sentences between defendants of differing races and income levels); Furman, 408 U.S. at 291, 305 (Brennan, J., concurring) (finding the death penalty “is uniquely degrading to human dignity”); Furman, 408 U.S. at 309 (Stewart, J., concurring) (finding that the death penalty is both cruel as a punishment and unusual in the sense that it is so infrequently imposed); Furman, 408 U.S. at 313 (White, J., concurring) (“[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and…there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.”); Furman, 408 U.S. at 360 (Marshall, J., concurring) (“[E]ven if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history.”).

[18]  See Sprenger, supra note 15, at 722 (finding the Furman Justices held the death penalty statutes unconstitutional for “fail[ing] to eliminate arbitrariness.”); see also Gregg v. Georgia, 428 U.S. 153, 189 (1976) (finding that when a sentencing body has discretion to impose the death penalty, “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”).

[19]  Gregg, 428 U.S. at 191–92 (“When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.”).

[20]  Id. at 195 (“[T]he further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.”).

[21]  Sprenger, supra note 15, at 723–24; see also Cong. Rsch. Serv., Eighth Amendment Cruel and Unusual Punishment, Const. Annotated, https://constitution.congress.gov/browse/amendment-8/#:~:text=Eighth%20Amendment%20Cruel%20and%20Unusual,cruel%20and%20unusual%20punishments%20inflicted (last visited Sept. 7, 2024) (finding that Gregg implying a proportionality review was essential to the constitutionality of a death sentence, but that the Court ultimately determined proportionality review was not constitutionally required in Pulley v. Harris).

[22]  Gregg, 428 U.S. at 206 (“If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.”).

[23]  Pulley v. Harris, 465 U.S. 37, 45 (1984) (“Examination of our 1976 cases makes clear that they do not establish proportionality review as a constitutional requirement.”).

[24]  Id. at 50 (“Proportionality review was considered to be an additional safeguard against arbitrarily imposed death sentences, but we certainly did not hold that comparative review was constitutionally required.”).

[25]  L.B. 268, 83d Leg., 1st Sess. (Neb. 1973).

[26]  Nebraska, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state/nebraska (last visited Feb. 27, 2025) (noting that one execution was conducted in 1994, 1996, 1997, and 2018); State Execution Rates (through 2024), Death Penalty Info. Ctr., https://deathpenaltyinfo.org/stories/state-execution-rates (last visited Feb. 27, 2025) (noting the total number of executions in Nebraska from 1976 to 2023). 

[27]  Neb. Rev. Stat. § 29-2521.03 (Reissue 1979) (enacted by L.B. 711, § 3, 85th Leg., 2d Sess. (Neb. 1978)). 

[28]  State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979). 

[29]  Id. at 74–75, 287 N.W.2d at 28.

[30]  Id. at 75, 287 N.W.2d at 28.

[31]  Id. at 75, 287 N.W.2d at 28–29 (“The Nebraska act, [§ 29-2521.03], was patterned after the Georgia act which requires the Georgia Supreme Court to review death sentences… The Georgia Supreme Court has restricted its review and comparison of ‘similar’ cases to cases involving crimes for which the death penalty is permissible.” (emphasis added)); see also Neb. Rev. Stat. § 28-303 (Reissue 1979) (enacted by L.B. 38, § 18, 85th Leg., 1st Sess. (Neb. 1977)) (defining murder in the first degree).

[32]  Williams, 205 Neb. at 75, 287 N.W.2d at 29 (emphasis added); see also § 29-2521.03 (“The Supreme Court shall…determine the propriety of the sentence in each case involving a criminal homicide…” (emphasis added)). 

[33]  Williams, 205 Neb. at 75–76, 287 N.W.2d at 29.

[34]  Id. at 76, 287 N.W.2d at 29 (“Where a death sentence has been imposed, and this court is required to determine the propriety of that sentence in such case, the determination of which previous first-degree murder cases involve the same or similar circumstances and are therefore comparable will be made by this court on a case-by-case basis.”).

[35]  Id. at 77, 287 N.W.2d at 29–30 (“We find no case in which a life sentence was given which involves the same or similar circumstances to that of the case at bar.”). 

[36]  State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982). 

[37]  Id. at 476, 316 N.W.2d at 44.

[38]  Id. at 473, 316 N.W.2d at 42 (“We now find it necessary to delineate the reasons why a literal application of [§ 29-2521.03] would unconstitutionally encroach upon the judicial function.”).

[39]  Id. at 473–74, 316 N.W.2d at 42–43.

[40]  Id. at 475–76, 316 N.W.2d at 43 (“If a person is charged with murder in the first degree but convicted of a lesser degree of homicide, and if [§ 29-2521.03] is to be applied literally, we would then, for purposes of reviewing the case before us, disregard the factfindings of the jury in the so-called ‘analogous’ case. Such a procedure would be constitutionally objectionable for a number of reasons. First, it would require this court to find facts in a case not before it. Secondly, it would constitute an attempt by the Legislature to make the factfindings of one case determinative of the sentence in another case on review. It is plain that under the principles we have earlier cited, that legislation which attempts to achieve such results is an intrusion on the judicial function, contrary to the separation of powers doctrine, and thus violates article II, s 1.”).

[41]  See id. at 476, 316 N.W.2d at 44 (finding review under § 29-2521.01 should be limited to only first-degree murder convictions); see also State v. Williams, 205 Neb. 56, 76, 287 N.W.2d 18, 29 (1979) (finding that only first-degree murder cases should be considered in a court’s death penalty proportionality review).

[42]  State v. Palmer, 224 Neb. 282, 328, 399 N.W.2d 706, 736 (1986).

[43]  Id. at 327, 399 N.W.2d at 735–36.

[44]  Id.; see also Donald H. Wallace & Jonathan R. Sorensen, Comparative Proportionality Review: A Nationwide Examination of Reversed Death Sentences, 22 AM. J. Crim. Just. 13, 19 (1997) (finding courts are less likely to deem a death sentence proportional when they review life imprisonment cases).

[45]  Palmer, 224 Neb. at 327, 399 N.W.2d at 735–36.

[46]  Id. at 327–28, 399 N.W.2d at 736.

[47]  Id.

[48]  Id. at 328, 399 N.W.2d at 736.

[49]  Id. 

[50]  E.g., State v. Garcia, 315 Neb. 74, 199, 994 N.W.2d 610, 704 (2023) (“This court held in State v. Palmer that it was appropriate to consider only those cases where the death penalty had been imposed…and that only such cases are ‘similar’…we decline to reconsider it today.”); State v. Schroeder, 305 Neb. 527, 558–59, 941 N.W.2d 445, 470 (2020) (“Proportionality review is not constitutionally mandated. It exists in Nebraska by virtue of §§ 29-2521.01 to 29-2521.04…In any case, we decline Schroeder’s invitation to overrule our decision in State v. Palmer…”); State v. Gales, 269 Neb. 443, 496, 694 N.W.2d 124, 169 (2005) (“But there is no question that our holding in State v. Palmer, supra, is the law.”). However, while the Nebraska Supreme Court has been unwilling to overturn State v. Palmer, the Federal District Court of Nebraska in Palmer v. Clarke did hold that State v. Palmer violated the due process clause by not comparing the sentence to all criminal homicides like the plain language of section 29-2521.03 requires. Palmer v. Clarke, 293 F. Supp. 2d 1011, 1041–42 (D. Neb. 2003), overruled in Palmer v. Clark, 408 F.3d 423 (8th Cir. 2005). Nevertheless, the Eighth Circuit held that the Federal constitution does not require a federal court to examine a state’s proportionality scheme, and the Nebraska Supreme Court directly denied the Federal District Court’s interpretation of section 29-2521.03 in Gales. Palmer v. Clarke, 408 F.3d 423, 438 (8th Cir. 2005); Gales, 269 Neb. at 496, 694 N.W.2d at 169.

[51]  Leigh B. Bienen, The Proportionality Review of Capital Cases by State High Courts After Gregg: Only “The Appearance Of Justice”?, 87 J. Crim. L. & Criminology 130, 140 (1996); see also Pulley v. Harris, 465 U.S. 37, 71 (1984) (Brennan, J., dissenting) (“Indeed, despite the Court’s insistence that such review is not compelled by the Federal Constitution, over thirty States now require, either by statute or judicial decision, some form of comparative proportionality review before any death sentence may be carried out.” (internal citation omitted)).

[52]  See Bienen, supra note 51, at 140 (finding that the number of States requiring comparative proportionality review in capital cases dropped from over 30 States pre-Pulley down to 22 in 1996); Penny J. White, Can Lightning Strike Twice? Obligations of State Courts After Pulley v. Harris, 70 U. Colo. L. Rev. 813, 847–48 (1999) (finding that 6 states repealed proportionality review from their statutes following Pulley and several others stopped judicially requiring comparative proportionality review in capital cases).

[53]  Ala. Code § 13A-5-53(b)(3) (1981).

[54]  Ga. Code Ann. § 17-10-35(c)(3) (West 1973); Gissendaner v. State, 532 S.E.2d 677, 690 (Ga. 2000) (finding that Georgia statutes require proportionality review to consider “whether the death penalty ‘is excessive per se’ or if the death penalty is ‘only rarely imposed…or substantially out of line’ for the type of crime involved and not whether there ever have been sentences less than death imposed for similar crimes.” (omission in original)), aff’d in Brookins v. State, 879 S.E.2d 466, 491 (Ga. 2022) (applying Gissendaner to the underlying proportionality review); Cape v. Francis, 741 F.2d 1287, 1302 (11th Cir. 1984) (finding the Georgia Supreme Court did not need to consider life sentences in proportionality review).

[55]  Ky. Rev. Stat. Ann. § 532.075(3)(c) (West 1976).

[56]  La. Code Crim. Proc. Ann. Art 905.9.1(c) (1976).

[57]  Miss. Code Ann. § 99-19-105(3)(c) (West 1977).

[58]  Mo. Ann. Stat. § 565.035(3)(3) (West 1983). 

[59]  Mont. Code Ann. § 46-18-310(1)(c) (West 1977).

[60]  Neb. Rev. Stat. § 29-2521.03 (Cum. Supp. 2020).

[61]  N.C. Gen. Stat. Ann. § 15A-2000(d)(2) (West 1977).

[62]  Ohio Rev. Code Ann. § 2929.05(A) (West 1998).

[63]  S.C. Code Ann. § 16-3-25(C)(3) (1977). 

[64]  S.D. Codified Laws § 23A-27A-12(3) (West 1979).

[65]  Tenn. Code Ann. § 39-13-206(c)(1)(D) (West 1989).

[66]  See Ariz. Rev. Stat. Ann. § 13-755 (1994); Ariz. Rev. Stat. Ann. § 13-756 (2002); State v. Salazar, 844 P.2d 566, 584 (Ariz. 1992) (“We are persuaded by Justice Corcoran’s arguments in support of discontinuing proportionality reviews and we, therefore, adopt them.”).

[67]  See Ark. Code Ann. §10(b) (West 1996); Williams v. State, 902 S.W.2d 767, 772 (Ark. 1995) (finding that a comparative proportionality review is not required); Williams v. State, No. CR93-988, 2011 WL 6275536, at *2 (Ark. 2011), overruled on other grounds by Nooner v. State, 438 S.W.3d 233 (2014) (holding that while proportionality review is not required, the Court can conducted a proportionality review and found no error in the present case).

[68]  See Cal. Penal Code § 190.1 (West 1978); Cal. Penal Code § 1239 (West 1982); People v. Gamache, 227 P.3d 342, 393–94 (Cal. 2010) (holding that comparative proportionality is not required under the California Constitution).

[69]  See Fla. Stat. Ann. § 921.141 (West 2023); Lawrence v. State, 308 So.3d 544, 552 (Fla. 2020) (“Accordingly, we recede from Yacob’s requirement to review death sentences for comparative proportionality and thus eliminate comparative proportionality review from the scope of our appellate review set forth in rule 9.142(a)(5).”).

[70]  See Idaho Code Ann. § 19-2827 (West 1977) (amended in 1994 to remove “disproportionate” language); State v. Fields, 908 P.2d 1211, 1225 (Idaho 1995) (“In 1994, the Idaho Legislature amended the statute governing the standards to be applied by this Court when reviewing cases in which the death penalty is imposed…The legislature’s amendment eliminated the requirement that this Court conduct a proportionality review…Prior to this amendment, excessiveness was determined under that section by determining whether the penalty in the case before this Court was ‘disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’ The elimination of this language has rendered the term ‘excessive’ as used in I.C. § 19-2827(c)(3) meaningless.” (citations omitted)).

[71]  See Ind. Code Ann. § 35-50-2-9 (West 1977); Timberlake v. State, 690 N.E.2d 243, 266 (Ind. 1997) (“As this Court has held many times in the past, however, neither the Indiana nor the United States Constitution requires a comparative-proportionality review.”); Wrinkles v. State, 690 N.E.2d 1156, 1173 (Ind. 1997) (finding that even when compared to other cases, the underlying death sentence was proportionate to other death penalty cases.”); INDIANA DEATH PENALTY CASES, INDEXED BY ISSUE, Indiana Public Defender Council, 17 (last updated Nov. 30, 2016), https://secure.in.gov/ipdc/files/indiana-capital-case-outline.pdf (finding a court “may go on to cite other similar cases, but is not constitutionally required to conduct comparative proportionality review, comparing the case to other capital cases.”).

[72]  See Kan. Stat. Ann. § 21-6619 (West 2010). 

[73]  See Nev. Rev. Stat. Ann. § 177.055(2)(e) (West 1967) (amended in 1985 to remove “disproportionate” language); McConnell v. State, 212 P.3d 307, 315 (Nev. 2009) (“In Dennis, this court explained that, although we no longer conduct proportionality review of death sentences, our consideration of the death sentences of ‘similarly situated defendants may serve as a frame of reference for determining the crucial issue in the excessiveness analysis’ under NRS 177.055(2).”).

[74]  See Okla. Stat. Ann. tit. 21, § 701.13(C) (West 1976) (amended in 1985 to remove “disproportionate” language); Smith v. State, 306 P.3d 557, 577 (Okla. 2013) (acknowledging that Oklahoma courts are not statutorily or constitutionally required to conduct a proportionality review).

[75]  See Or. Rev. Stat. Ann. § 163.150 (West 1985); State v. Cunningham, 880 P.2d 431, 443 (Or. 1994) (“Defendant was not entitled to proportionality review of death sentences.”).

[76]  See 42 Pa. Stat. and Cons. Stat. § 9711(h)(3) (West 1974) (amended in 1997 to remove “disproportionate” language.); Commonwealth v. Knight, 156 A.3d 239, 249 (Pa. 2016) (acknowledging that Pennsylvania courts are not statutorily or constitutionally required to conduct a proportionality review).

[77]  See Tex. Code Crim. Proc. Ann. art. 37.071 (West 1973); Cantu v. State, 939 S.W.2d 627, 648 (Tex. Crim. App. 1997) (finding that a proportionality review is not required under the Eighth or Fourteenth Amendments to the United States Constitution); see also The Texas Capital Punishment Assessment Report: An Analysis of Texas’s Death Penalty Laws, Procedures, and Practices, Am. Bar Ass’n, xii (Sept. 2013), https://www.capitalclemency.org/file/Texas-Assessment.pdf (completing a comprehensive study of Texas’s death penalty scheme and finding that comparative proportionality review is not conducted, but finding that the Texas Court of Criminal Appeals should adopt a proportionality test that includes a pool of all death-eligible cases).

[78]  See Utah Code Ann. § 76-3-206 (West 1973); State v. Maestas, 299 P.3d 892, 987 (Utah 2012) (finding that comparative proportionality was not constitutionally required in Utah, but a court could engage in a proportionality review if the court finds it appropriate); State v. Lafferty, 20 P.3d 342, 376 (Utah 2001) (“We have declined to engage in comparative proportionality review in the past, and we will not here conduct a case-by-case comparison of defendant’s sentence with other similar cases…to determine whether the death penalty was properly imposed.”).

[79]  See Wyo. Stat. Ann. § 6-2-103 (West 1982) (amended in 1989 to remove “disproportionate” language); Olsen v. State, 67 P.3d 536, 610 (Wyo. 2003) (finding that Wyoming courts do not constitutionally need to conduct a comparative proportionality review, however, the courts must ensure a capital sentence is not arbitrary or unjust).

[80]  Timothy V. Kaufman-Osborn, Capital Punishment, Proportionality Review, and Claims of Fairness (with Lessons from Washington State), 79 Wash. L. Rev. 775, 795–97 (2004); see also Latzer, supra note 13, at 1203 (referring to the issue of determining similar cases as “The ‘Universe’ Problem”).

[81]  Kaufman-Osborn, supra note 80, at 795.

[82]  Beck v. State, 396 So. 2d 645, 664 (Ala. 1980) (“The procedure we adopt requires that the reviewing court examine cases in which the death penalty is imposed and ascertain that the death penalty is imposed with some uniformity and that its imposition is not substantially out of line with sentences imposed for other acts. In other words, the reviewing court should not affirm a death sentence unless the death penalty is being imposed generally in similar cases throughout the state.”).

[83]  Hodge v. Commonwealth, 17 S.W.3d 824, 855 (Ky. 2000) (“Pursuant to KRS 532.075(3), we have reviewed this record and concluded that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor…We have also reviewed all cases decided since 1970 in which the death penalty was imposed.”); Meece v. Commonwealth, 348 S.W.3d 627, 726 (Ky. 2011) (compared the underlying death penalty to those similar cases listed in Hodge, 17 S.W.3d 824 (Ky. 2000)).

[84]  Clark v. State, 343 So. 3d 943, 1002 (Miss. 2022) (“Further, this Court has repeatedly found that death sentences are not disproportionate to capital murders with underlying armed robberies.”); Loden v. State, 971 So. 2d 548, 571 (Miss. 2007) (“From the evidence presented, this Court finds that death penalty…was not disproportionate or excessive when compared to the sentences in other capital murder cases affirmed by this Court.”).

[85]  State v. Wood, 580 S.W.3d 566, 590–91 (Mo. 2019) (compared the underlying case to other cases that imposed the death sentence for a similar crime.); State v. Deck, 303 S.W.3d 527, 551 (Mo. 2010) (“Deck also claims this Court’s proportionality review is fatally flawed because it considers only cases in which death was imposed instead of all factually similar cases. This argument has been repeatedly rejected by this Court.”).

[86]  State v. Palmer, 224 Neb. 282, 327–28, 399 N.W.2d 706, 736 (1986) (“Accordingly, there is no way of this court’s knowing whether any aggravating or mitigating circumstances were present in a given case unless the sentence was death. Therefore, no other case but a death sentence case can be said to be a case similar to that under review.”).

[87]  State v. Whitaker, 207 N.E.3d 677, 716 (Ohio 2022) (the court held that “[t]he proportionality review required by R.C. 2929.05(A) is satisfied by a review of those cases already decided by the reviewing court in which the death penalty has been imposed.” (quoting State v. Steffen, 509 N.E.2d 383, 386 (Ohio 1987)); State v. Davis, 584 N.E.2d 1192, 1197 (Ohio 1992) (“[T]he proportionality review mandated by R.C. 2929.05(A) does not require a review of those cases in which a sentence of life imprisonment is imposed.”); State v. Holmes, 506 N.E.2d 276, 279 (Ohio 1986) (finding comparative proportionality review is not constitutionally required and the proportionality review required under RC 2929.05 does not apply to sentences of life imprisonment).

[88]  E.g., Palmer, 224 Neb. at 327–28, 399 N.W.2d at 736 (“[N]o other case but a death sentence case can be said to be a case similar to that under review.”); Davis, 584 N.E.2d at 1197 (“[T]he proportionality review mandated by R.C. 2929.05(A) does not require a review of those cases in which a sentence of life imprisonment is imposed.”).

[89]  Sprenger, supra note 15, at 731; Latzer, supra note 13, at 1204.

[90]  Id.

[91]  Id.

[92]  Sprenger, supra note 15, at 731.

[93]  Id. 

[94]  See, e.g., Neb. Rev. Stat. § 28-303 (Cum. Supp. 2020); see also Neb. Rev. Stat. § 29-2519(2)(d) (Cum. Supp. 2020) (declaring that the statutory aggravating factors do not constitute an additional element to the crime of first-degree murder but are rather a factor for sentencing considerations).

[95]  See, e.g., State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979) (showing that a reviewing court can consider all first-degree murder convictions for a proportionality review); State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982) (finding that an unappealed, non-capital murder case was not a binding precedent for subsequent convictions but could be considered when determining proportionality). 

[96]  See, e.g., Neb. Rev. Stat. § 29-2522 (Cum. Supp. 2020) (mandating the appellate court to ensure the existence of any found aggravating factors).

[97]  Sprenger, supra note 15, at 731.

[98]  Sprenger, supra note 15, at 732.

[99]  See Williams, 205 Neb. at 75–76, 287 N.W.2d at 29 (interpreting the Nebraska statute requiring proportionality review of all criminal homicides, but not beyond that as to avoid constitutional issues of prosecutorial discretion); Moore, 210 Neb. at 475–76, 316 N.W.2d at 43 (discussing separation of powers concerns when a court considers not-death eligible cases in a proportionality review).

[100]  Sprenger, supra note 15, at 732; State Execution Rates, supra note 26.

[101]  See Loana Nardoni, Florida’s Removal of Safeguards for Defendants on Death-Row: Comparative Proportionality Review, 49 Fla. St. U. L. Rev. 357, 376 (2022) (“While requiring comparative proportionality review would necessitate additional funding, administrative convenience does not justify an increased risk of error where a person’s life is at stake.”).

[102]  Kaufman-Osborn, supra note 80, at 795–96; see also Sprenger, supra note 15, at 735 (“Although preferable to a universe of potentially similar cases restricted to death sentence cases, the penalty-trial approach is also flawed because it grossly underrepresents similar cases that resulted in life sentences.”).

[103]  State v. Smith, 931 P.2d 1272, 1285 (Mont. 1996) (“On appellate review of a death penalty case, our evaluation of the proportionality of the death sentence imposed must take into account the discretionary stages in all criminal cases, as described above. A further rationale for limiting proportionality review of other cases to cases in which the death penalty was proposed is that only when the death penalty is sought will a record exist concerning aggravating and mitigating circumstances.”); State v. Johnson, 969 P.2d 925, 937 (Mont. 1998) (“Our reasoning in Smith remains sound; only when the death penalty is sought will a record exist concerning aggravating and mitigating circumstances.”).

[104]  State v. Piper, 842 N.W.2d 338, 347 (S.D. 2014) (finding that “similar cases for purposes of SDCL 23A-27A-12(3) are those cases in which a capital sentencing proceeding was actually conducted, whether the sentence imposed was life or death. Because the aim of proportionality review is to ascertain what other capital sentencing authorities have done with similar capital murder offenses, the only cases that could be deemed similar…are those in which imposition of the death penalty was properly before the sentencing authority for determination.” (quoting State v. Robert, 820 N.W.2d 136, 145 (S.D. 2012))).

[105]  State v. Miller, 638 S.W.3d 136, 166 (Tenn. 2021) (“Our review employs the precedent-seeking method of comparative proportionality review, in which we compare this case with other cases involving similar crimes and similar defendants in order to ‘identify and invalidate the aberrant death sentence.’ The relevant pool of cases consists of ‘those first-degree murder cases in which the State sought the death penalty, a capital sentencing hearing was held, and the jury determined whether the sentence should be life imprisonment, life imprisonment without possibility of parole, or death.’” (internal citations omitted)); State v. Bland, 958 S.W.2d 651, 666 (Tenn. 1997) (“For purposes of comparative proportionality review, we eliminate from the ‘universe’ and include in the more narrow ‘pool’ for comparison only those cases in which a capital sentencing hearing was actually conducted to determine whether the sentence should be life imprisonment, life imprisonment without the possibility of parole, or death by electrocution, regardless of the sentence actually imposed.”).

[106]  Sprenger, supra note 15, at 734–35 (“A penalty trial is to be distinguished from a guilt or liability trial. In a penalty trial, a court or jury assumes criminal responsibility exists. The central issue is whether aggravating circumstances are present and, if so, whether they outweigh any mitigating circumstances and therefore justify the imposition of a death penalty.”).

[107]  Id. at 735.

[108]  Kaufman-Osborn, supra note 80, at 796.

[109]  Id.; see also Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring) (finding the death penalty is imposed too infrequently to create any meaningful distinction between the cases it is imposed in, and those cases which it is not).

[110]  Kaufman-Osborn, supra note 80, at 797 (providing a “more inclusive indication of the diverse ways that the law disposes of first-degree murders.”); Sprenger, supra note 15, at 737.

[111]  See Sprenger, supra note 15, at 739 (advocating for an approach that considers all first-degree murder convictions to fairly perform a proportionality review).

[112]  State v. Brown, 347 So. 3d 745, 845–47 (La. 2022) (comparing other cases where the defendants were sentenced to death or life imprisonment).

[113]  State v. Green, 443 S.E.2d 14, 198 (N.C. 1994) (“If, after making such comparison, we find that juries have consistently returned death sentences in factually similar cases, we will have a strong basis for concluding that the death sentence under review is not excessive or disproportionate. If juries have consistently returned life sentences in factually similar cases, however, we will have a strong basis for concluding that the death sentence in the case under review is disproportionate.” (quoting State v. McCollum, 433 S.E.2d 144, 163 (N.C. 1993)). However, while Green held that the Court would look to both life sentences and death sentences of factually similar cases, the Court has often limited its review to only those cases where the death penalty was found to be proportionate or disproportionate. See, e.g., State v. McNeill, 813 S.E.2d 797, 838–39 (N.C. 2018); State v. Maness, 677 S.E.2d 796, 818 (N.C. 2009). While North Carolina includes life and death sentences in their universe of similar cases, the limited scope of their review contradicts the premise of comparative proportionality because the state Supreme Court does not properly consider the likelihood that a jury will sentence an individual to life or death. See Brooks Emanuel, Comment, North Carolina’s Failure to Perform Comparative Proportionality Review: Violating the Eighth and Fourteenth Amendments by Allowing the Arbitrary and Discriminatory Application of the Death Penalty, 39 N.Y.U. Rev. L. & Soc. Change 419, 435–36 (2015) (“By only comparing to the few cases in which it has previously found a death sentence disproportionate, the North Carolina Supreme Court does not compare to any jury sentences, making it impossible for comparative proportionality review to fulfill its constitutional mandate.”).

[114]  Moore v. Stirling, 871 S.E.2d 423, 435 (S.C. 2022) (“[W]e clarify our holding in Copeland and hold this Court is not statutorily required to limit the pool of ‘similar cases’ for comparative proportionality review to only those cases in which the death penalty was imposed.”). The South Carolina Supreme Court in Stirling reviewed defendant’s habeas corpus petition and found that the defendant’s claim of an unconstitutionally restrictive pool of cases—which included only cases sentenced to death—was a valid Habeas Corpus claim under South Carolina law. Id. at 433–35. The South Carolina Supreme Court ultimately determined that defendant’s death sentence was proportional; however, the South Carolina Supreme Court did expand its pool of similar cases to include cases where the defendant was sentenced to life imprisonment. Id. The South Carolina Supreme Court determined that § 16-3-25 did not limit a court to consider only other death penalty cases, and the growing prevalence of appellate courts reviewing life sentences made it judicially feasible to include appellate records of life sentences in the pool of similar cases for death penalty proportionality review. Id. at 433–34.

[115]  See Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring) (finding the death penalty is imposed too infrequently to create any meaningful distinction between the cases it is imposed in, and those cases which it is not).

[116]  Kaufman-Osborn, supra note 80, at 798.

[117]  Id.; Prosecutorial Discretion, Cap. Punishment in Context, https://capitalpunishmentincontext.org/issues/discretion#:~:text=State%20prosecutors%20have%20sole%20discretion,will%20face%20the%20death%20penalty (last visited Jan. 11, 2025) (finding a jurisdiction’s financial resources, the views of the local constituents, the local political climate, and the prosecutor’s own personal beliefs are all factors a prosecutor can consider when deciding whether to pursue the death penalty).

[118]  See Kaufman-Osborn, supra note 80, at 798.

[119]  See Latzer, supra note 13, at 1204 (discussing the uncertainty of prosecutorial discretion and not having all relevant information presented to the reviewing court as problems in a death-eligible universe of cases).

[120]  Neb. Rev. Stat. § 29-2521.03 (Cum. Supp. 2020) (“The Nebraska Supreme Court shall, upon appeal, determine the propriety of the sentence in each case involving a criminal homicide by comparing such case with previous cases involving the same or similar circumstances.”).

[121]  See State v. Palmer, 224 Neb. 282, 327–28, 399 N.W.2d 706, 736 (1986) (“Accordingly, there is no way of this court’s knowing whether any aggravating or mitigating circumstances were present in a given case unless the sentence was death. Therefore, no other case but a death sentence case can be said to be a case similar to that under review.”). See also Kaufman-Osborn, supra note 80, at 795 (“Most restrictively, a court can limit its comparative review to only those cases that resulted in death sentences upheld on appeal.”); William W. Berry III, Ending the Death Lottery: A Case Study of Ohio’s Broken Proportionality Review, 76 Ohio St. L.J. 67, 80 (2005) (arguing that Ohio does not conduct meaningful comparative proportionality review by only considering other death sentences).

[122]  See, e.g., State v. Garcia, 315 Neb. 74, 199, 994 N.W.2d 610, 704 (2023) (declining to reconsider State v. Palmer); State v. Schroeder, 305 Neb. 527, 563, 941 N.W.2d 445, 472–73 (2020) (finding that courts only need to consider other death penalty cases in its proportionality review).

[123]  Kaufman-Osborn, supra note 80, at 785 (“A general commitment to proportionality as a vital ingredient of fairness is expressed in the text of the U.S. Constitution.”).

[124]  Id.

[125]  Alexandra E. Wilson-Schoone, The Debate on Whether Life Sentences Should be Considered: Will Missouri’s Proportionality Review Remain Meaningful, 77 Mo. L. Rev. 909, 928 (2012) (finding that “[s]uch a limited comparison [of only death penalty cases] proves perfunctory, rendering the comparison meaningless.”); see also The Report of the Oklahoma Death Penalty Review Commission, Okla. City Univ. Sch. of L., 200 (Apr. 18, 2024), https://scholarship.law.okcu.edu/work/ns/29e235bd-9711-442e-9ce5-14d05086d63b (finding that geographic location could also be a factor for indiscriminate death sentences because only 2% of the counties in the United States are responsible for more than half of the total executions between 1976 and 2013. This large discrepancy creates questions about “[t]he disparate use of capital punishment by a small number of counties [which] raises meaningful questions about the fairness and effectiveness of the death penalty.”).

[126]  Wilson-Schoone, supra note 125, at 928(finding that a comparison of only other death sentences rendered proportionality review meaningless).

[127]  See State v. Marshall, 130 N.J. 109 (1992), abrogated by State v. Harris, 165 N.J. 303 (2000); see also Latzer, supra note 13, at 1205 (finding that the New Jersey Supreme Court has “been unswervingly committed to the expansive universe”, defending both the consideration of life imprisonment sentences and death penalty sentences in their proportionality review).

[128]  Marshall, 130 N.J. at 133–34.

[129]  Gregg v. Georgia, 428 U.S. 153, 189 (1976) (“Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.”). 

[130]  See Marshall, 130 N.J. at 133–34.

[131]  Lawrence S. Lustberg & Lenora M. Lapidus, The Importance of Saving The Universe: Keeping Proportionality Review Meaningful, 26 Seton Hall L. Rev. 1423, 1430 (1996) (“Comparing a case under review solely to other cases in which a death sentence has been imposed makes the size of the pool more manageable. However, it fails to address the question framed by Justice White in Furman—how can the few cases in which a death sentence is imposed be “meaningfully distinguished” from the many apparently similar cases that resulted in a life sentence?...Without examining the life cases, it is impossible to develop the rational distinctions required.”); Sprenger, supra note 15, at 733 (“If a court identifies only one similar death sentence case that supports a death sentence under review, the court does not meaningfully distinguish the current case from similar cases that ended in a sentence less than death. Indeed, the similar death sentence case that supports the death sentence under review may itself be arbitrary. Without examining similar life sentence cases, it is impossible for a court to develop the distinctions required both under the state death penalty statute and the Constitution.”).

[132]  State v. Palmer, 224 Neb. 282, 328, 399 N.W.2d 706, 736 (1986) (emphasis added).

[133]  Compare Palmer, 224 Neb. at 329, 300 N.W.2d at 706 (requiring courts to compare the underlying sentence to other cases sentenced to death), with Gissendaner v. State, 532 S.E.2d 677, 690 (Ga. 2000) (finding that Georgia statutes require proportionality review to consider “whether the death penalty “is excessive per se” or if the death penalty is “only rarely imposed…or substantially out of line” for the type of crime involved and not whether there ever have been sentences less than death imposed for similar crimes.”), aff’d in Brookings v. State, 879 S.E.2d 466, 491 (Ga. 2022) (applying Gissendaner to the underlying proportionality review). See also infra Part IV, section B (showing the Court’s continued practice of using comparative proportionality review for Eighth Amendment challenges).

[134]  See Furman v. Georgia, 408 U.S. 238, 313 (1972) (White, J., concurring); see also Emanuel, supra note 113, at 435 (finding that a system that considered only cases where the death penalty was found to be disproportionate is “necessarily of limited value because it cannot answer the central question: whether the death sentence is proportionate when compared to jury sentences in which life and death verdicts were imposed.”); Joshua Dressler, Understanding Criminal Law 57 (4^th ed. 2006) (advocating that “[o]ne real-world way to scale deserts in a sentencing system based on retribution is to proportion punishment between offenses, rather than to offenses.”).

[135]  Palmer, 224 Neb. at 328–31, 399 N.W.2d at 736–38.

[136]  See State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979); State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).

[137]  See Williams, 205 Neb. at 75–76, 287 N.W.2d at 29 (“If the language be interpreted to extend beyond first[-]degree murder convictions, problems relating to the exercise of prosecutorial discretion in homicide cases and the sentencing juries of the decisional power of determining guilt or innocence or fixing degrees of culpability in homicide cases are all involved. To interpret that language of [§ 29-2521.03] literally would create insurmountable constitutional problems.”); Moore, 210 Neb. at 475–76, 316 N.W.2d 43–44 (finding that a comparison of death sentences to non-first-degree murder convictions is improper because it would require the Nebraska Supreme Court to: (1) find facts not before it, (2) improperly allow the Legislature to require factfinding, and (3) improperly bind the Supreme Court to the determination of lower district court decisions).

[138]  While no Nebraska court has ever called the statuary process of finding aggravating circumstances in a death penalty proceeding “an enhancement proceeding,” they are analogous for purposes of justiciability. Notably, the Nebraska Supreme Court has held that aggravating factors are not essential elements of first-degree murder. State v. Sandoval, 280 Neb. 309, 322–23, 788 N.W.2d 172, 193 (2010); State v. Mata, 275 Neb. 1, 17–18, 745 N.W.2d 229, 247 (2008); Neb. Rev. Stat. § 29-2519(2)(d) (Cum. Supp. 2020) (“but the aggravating circumstances are not intended to constitute elements of the crime…”). 

[139]  See Neb. Rev. Stat. § 29-2523(1) (Cum. Supp. 2020); Lustberg & Lapidus, supra note 131, at 1430.

[140]  See Palmer, 224 Neb. at 345–59, 399 N.W.2d at 746–53 (Krivosha, J., concurring in part and dissenting in part) (detailing the legislative history of Nebraska’s proportionality statute).

[141]  Id. at 356, 399 N.W.2d at 751 (“The statement makes it clear that the intent of the act was to expand the cases to be included in the review.”).

[142]  Hearings on L.B. 711 Before the Judiciary Comm., 85^th Leg., 2d Sess. 7377 (1978) (statement of Senator Chambers) [Hereinafter Hearings on L.B. 711], quoted in Palmer, 224 Neb. at 356, 399 N.W.2d at 752.

[143]  Hearings on L.B. 711, supra note 142, at 7377 (emphasis added).

[144]  Id. at 7378.

[145]  See Neb. Rev. Stat. § 29-2521.03 (Cum. Supp. 2020) (showing that the statute has not been amended since its adoption in 1978 by L.B. 711 from the legislative history).

[146]  Lustberg & Lapidus, supra note 131, at 1430; Sherod Thaxton, Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging, 49 Ariz. St. L.J. 137, 199–200 (2017). See also The Texas Capital Punishment Assessment Report: An Analysis of Texas’s Death Penalty Laws, supra note 77, at xii (finding that the Texas Court of Criminal Appeals should adopt a proportionality test that includes a pool of all death-eligible cases).

[147]  Thaxton, supra note 146, at 199.

[148]  Id. at 199–200.

[149]  Id. at 200.

[150]  Emanuel, supra note 113, at 432–37 (finding that the scope of the universe of cases a court considers is essential to ensure that an accurate proportionality review is conducted).

[151]  Id. at 436 (“The inclusion of life sentences is “essential” because “quite obviously, a significant number or similar cases in which death was not imposed might well provide the most relevant evidence or arbitrariness in the sentence before the court.””).

[152]  Wallace & Sorensen, supra note 44, at 19.

[153]  Linda Burgess, Comparative Proportionality Review of Death Sentences: Is It a Meaningful Safeguard in Oklahoma?, 38 Okla. L. Rev. 267, 278 (1985).

[154]  State v. Palmer, 224 Neb. 282, 357–58, 399 N.W.2d 706, 752 (1986) (Krivosha, C.J., concurring in part and dissenting in part).

[155]  See Id.

[156]  See Sprenger, supra note 15, at 733 (“despite the virtuous simplicity to include only death sentence cases in the universe, this approach fails to address a hard question to which the legislatures wanted an answer: Can a case under review be meaningfully distinguished from the many similar cases that resulted in sentences less than death?” Further finding that “examining only death cases effectively defeats the purpose of proportionality review in the vast majority of cases.”).

[157]  See Traci Smith, The Outlier Case: Proportionality Review In State v. Rhines, 42 S.D. L. Rev. 192, 211 (1997) (finding an expansive universe of cases can protect against social, racial, or sexual discrimination).

[158]  Sprenger, supra note 15, at 736; Smith, supra note 157, at 218.

[159]  Sprenger, supra note 15, at 736 (“To assure accurate and convincing determination, the courts’ goal should be to find the best available cross section rather than ‘a sufficient cross section.’”).

[160]  See Furman v. Georgia, 498 U.S. 238 (1972) (per curiam).

[161]  Smith, supra note 157, at 218.

[162]  Crime in Nebraska (2022), Neb. Comm’n on L. Enf’t and Crim. Just., 2 (Aug. 4, 2023), https://ncc.nebraska.gov/sites/default/files/doc/2022%20Crime%20in%20Nebraska.pdf.

[163]  See Smith, supra note 157, at 218 (finding that in a small state like South Dakota—which has relatively few murders each year—it would “be no great feat to include all reported murder cases in the pool of similar cases.”); see also State Execution Rates, supra note 26 (finding that only 44 individuals have been sentenced to death in Nebraska since 1976).

[164]  Neb. Rev. Stat. § 29-2524.01 (Cum. Supp. 2020); see also Neb. Rev. Stat. § 29-2524.02 (Cum. Supp. 2020) (requiring the State Court Administrator to carry out § 29-2524.01).

[165]  § 29-2524.01.

[166]  Sprenger, supra note 15, at 727.

[167]  Id.

[168]  Susan Raeker-Jordan, Kennedy, Kennedy, and the Eighth Amendment: “Still In Search of A Unifying Principle”?, 73 U. Pitt. L. Rev. 107, 112 (2011); see also Eighth Amendment Cruel and Unusual Punishment, supra note 21 (finding that many Framers were concerned about “tortures and barbarous” punishments, which led to the creation of the Eighth Amendment).

[169]  The Heritage Guide To the Constitution 363 (Edwin Meese III, Matthew Spalding, & David Forte eds. 2005); see also Eighth Amendment Cruel and Unusual Punishment, supra note 21 (“but the English history which led to the inclusion of a predecessor provision in the Bill of Rights of 1689 indicates additional concern with arbitrary and disproportionate punishments.”).

[170]  Raeker-Jordan, supra note 168, at 112.

[171]  Id.

[172]  Id. at 113 (relating to Pervear, “[t]he Court’s brief consideration reveals that, as early as 1866, it was conducting proportionality analysis.”); see Pervear v. Commonwealth, 72 U.S. 475, 480 (1866).

[173]  Pervear, 72 U.S. at 476.

[174]  Id. at 480.

[175]  Id. at 479–80; contra Robinson v. California, 370 U.S. 660, 667 (1962) (holding that a state criminal law punishing a disease was an “infliction of cruel and unusual punishment in violation of the Eight and Fourteenth Amendments.”).

[176]  Pervear, 72 U.S. at 480 (“We perceive nothing excessive, or cruel, or unusual in this…The mode adopted, of prohibiting under penalties the sale and keeping for sale of intoxicating liquors, without license, is the usual mode adopted in many, perhaps, all of the States.”); Raeker-Jordan, supra note 168, at 114 (finding that the Court in Pervear went beyond inherent proportionality review by conducting a comparative analysis to other state statutes).

[177]  See Wilkerson v. Utah, 99 U.S. 130 (1878).

[178]  Id. at 130.

[179]  Id. at 136 (“but it is safe to affirm that punishments of torture, such as those mentioned by the commentator referred to, and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution.”).

[180]  Id. at 134–35 (“Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment.”).

[181]  O’Neil v. Vermont, 144 U.S. 323, 331 (1892) (“It is not assigned in this court as error, in the assignment of errors, or in the brief of O’Neil, that he was subjected to cruel and unusual punishment, in violation of the constitution of the United States.”).

[182]  Id. at 339–40 (“The inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offense charged…the judgment of mankind would be that the punishment was not only an unusual one, but a cruel, one, and a cry of horror would rise from every civilized and Christian community of the country against it. It does not alter its character as cruel and unusual that for each distinct offense there is a small punishment, if, when they are brought together, and one punishment for the whole is inflicted, it becomes one of excessive severity.” (emphasis added)).

[183]  Weems v. United States, 217 U.S. 349, 358 (1910). 

[184]  Id. at 367. 

[185]  Id. at 550–51.

[186]  Id. at 381 (“And this contrast shows more than different exercise of legislative judgment. It is greater than that. It condemns the sentence in this case as cruel and unusual. It exhibits a difference between unrestrained power and that which is exercised under the spirit of the constitutional limitations formed to establish justice.”); see also Proportionality, Justia (last visited Sept. 9, 2024), https://law.justia.com/constitution/us/amendment-08/14-proportionality.html (finding that the Court in Weems compared the sentence to similar sentences imposed by other state legislatures).

[187]  Weems, 217 U.S. at 377 (finding the punishment is disproportionate “under the condemnation of the Bill of Rights, both on account of their degree and kind.”).

[188]  Solem v. Helm, 463 U.S. 277, 290 (1983) (“When sentences are reviewed under the Eighth Amendment, courts should be guided by objective factors that our cases have recognized.”).

[189]  Id. at 292.

[190]  Id. at 284–87; contra Harmelin v. Michigan, 501 U.S. 957 (1991) (finding that a narrow proportionality requirement existed in the Eighth Amendment but disagreed with the historical approach taken in Solem—finding that proportionality was not required by common law).

[191]  Solem, 463 U.S. at 291; see also Enmund v. Florida, 458 U.S. 782, 792–93 (1982) (finding that only eight jurisdictions allowed for a defendant in a similar crime to be sentenced to death).

[192]  White, supra note 52, at 834–35.

[193]  See, e.g., Lockyer v. Andrade, 538 U.S. 63, 70 (2003) (finding the Court has “not established a clear or consistent path for courts to follow.”).

[194]  See supra section IV.B. 

[195]  E.g., Graham v. Florida, 560 U.S. 48, 59 (2010) (finding that “[t]he concept of proportionality is central to the Eighth Amendment.”); Miller v. Alabama, 567 U.S. 460, 469 (2012) (finding a court should conduct proportionality review through the “evolving standards of decency” test).

[196]  See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976).

[197]  Gregg, 428 U.S. at 206.

[198]  See id. (“If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.”).

[199]  Woodson, 428 U.S. at 280; Coker v. Georgia, 433 U.S. 584 (1977).

[200]  Woodson, 428 U.S. at 282.

[201]  Id. at 292–93 (“The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two critical indicators of evolving standards of decency respecting the imposition of punishment in our society[,] jury determinations and legislative enactments[,] both point conclusively to the repudiation of automatic death sentences.”).

[202]  Id. at 302.

[203]  Id. at 303.

[204]  Id. at 304 (“we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment…requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.”).

[205]  Id. at 292–93.

[206]  Coker v. Georgia, 433 U.S. 584, 592 (1977).

[207]  Id.; Gregg v. Georgia, 428 U.S. 153, 173 (1976) (“First, the punishment must not involve the unnecessary and wanton infliction of pain…Second, the punishment must not be grossly out of proportion to the severity of the crime.”).

[208]  Coker, 433 U.S. at 595–96.

[209]  Id. at 597 (“the legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman.”); see also Kennedy v. Louisiana, 554 U.S. 407 (2008) (finding that Coker applied to rape cases where the victim was a child—who survived—because only 6 states permitted the death penalty for such a crime).

[210]  Pulley v. Harris, 465 U.S. 37, 45 (1983) (“Examination of our 1976 cases makes clear that they do not establish proportionality review as a constitutional requirement.”).

[211]  Id. at 50 (“Proportionality review was considered to be an additional safeguard against arbitrarily imposed death sentences, but we certainly did not hold that comparative review was constitutionally required.”).

[212]  Id. at 48; see also Jurek v. Texas, 428 U.S. 262 (1976) (finding that Texas had proper procedural safeguards to prevent the arbitrary imposition of the death penalty).

[213]  Proffitt v. Florida, 428 U.S. 242 (1976) (finding that Florida’s requirement for prompt appellate review of death sentences prevented arbitrary impositions of the death penalty).

[214]  Zant v. Stephens, 462 U.S. 862, 890 (1983) (emphasis added).

[215] Id.; White, supra note 52, at 836 (“the Zant court relied on the “mandatory appellate review,” which assured proportionality.”).

[216]  White, supra note 52, at 836 (“Yet, when relied upon in Pulley, the Zant decision was recast as one which focused instead on the validity of the remaining aggravating circumstances.”); Pulley v. Harris, 465 U.S. 37, 50 (1984) (finding that Zant’s holding did not require comparative proportionality review, but “relied on the jury’s finding of aggravating circumstances, not the State Supreme Court’s finding of proportionality, as rationalizing the sentence.”).

[217]  See, e.g., Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (finding a mandatory sentence of death fails to “allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.”); Zant v. Stephens, 462 U.S. 862, 890 (1983) (“we have also been assured that a death sentence will be vacated if it is excessive or substantially disproportionate to the penalties that have been imposed under similar circumstances.”); Weems v. United States, 217 U.S. 349, 367 (1910) (“a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.”). See also St. George Tucker, Blackstone’s Commentaries with Notes of Reference, Longang Institute (last visited Sept. 1, 2024), https://lonang.com/library/reference/tucker-blackstone-notes-reference/tuck-501/ (offering an online version of St. George Tucker, Of the Nature of Crimes; and Their Punishment, in Blackstone’s Commentaries with Notes of Reference (vol. 5 1803)). While not regarded as a Framer, Tucker was an early American attorney who served as a judge in Virginia. Tucker wrote several notable commentaries on the Constitution which were used to determine how the Constitution was interpreted by early 19^th century attorneys. In one of these commentaries, Tucker wrote that “[t]he method however of inflicting punishment ought always be proportioned to the particular purpose it is meant to serve, and by no means exceed it.” Id. Again, showing the early American belief that proportionality of criminal sentences was a common law protection.

[218]  See Woodson v. North Carolina, 428 U.S. 280, 303 (1976) (finding the mandatory imposition of the death penalty for all first-degree murder cases violated the 8^th Amendment).

[219]  See e.g., Coker v. Georgia, 433 U.S. 584 (1974) (finding that the imposition of the death penalty for cases of rape of an adult woman is unconstitutional); Enmund v. Florida, 458 U.S. 782 (1982) (finding that the imposition of the death penalty for felony murder is inherently disproportionate); Roper v. Simmons, 534 U.S. 551 (2005) (finding the imposition of the death penalty for juvenile offenders is inherently disproportionate).

[220]  Furman v. Georgia, 408 U.S. 238, 256–57 (1972) (Douglas, J., concurring) (finding the death penalty is discriminatorily applied against indigent defendants); Furman, 408 U.S. at 310 (White, J., concurring) (finding the death penalty is imposed too infrequently to not be arbitrary).

[221]  See Woodson, 428 U.S. at 303 (finding the North Carolina law failed to allow the judiciary to review for arbitrary and capricious impositions of the death penalty).

[222]  See Pulley v. Harris, 465 U.S. 37 (1984).

[223]  See Gregg v. Georgia, 428 U.S. 153, 206 (1976) (“proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.”).

[224]  See Wallace & Sorensen, supra note 44 (finding that a court’s consideration of life sentences reduces the likelihood the court finds the death sentence to be proportional); Sprenger, supra note 15, at 733 (“despite the virtuous simplicity to include only death sentence cases in the universe, this approach fails to address a hard question to which the legislatures wanted an answer: Can a case under review be meaningfully distinguished from the many similar cases that resulted in sentences less than death?” Further finding that “examining only death cases effectively defeats the purpose of proportionality review in the vast majority of cases.”).

[225]  Sprenger, supra note 15, at 733. 

[226]  See supra section II.A.

[227]  See supra section IV.B.

[228]  See supra section IV.B.

[229]  See supra section IV.A.

[230]  See supra section IV.A.

[231]  See supra section IV.A.

[232]  See supra section IV.A.

[233]  State v. Palmer, 224 Neb. 282, 326–27, 399 N.W.2d 706, 735 (1986).