The procedures in death penalty jurisdictions were set up so that the life or death decision in eli- gible cases was based on decisions of two primary sets of actors in the process. First, prosecutors had discretion whether to seek a death sentence versus a prison sentence. If a death penalty was sought and guilt was established, the jury (and, in a few places, judges) made the fi nal decision on the punish- ment to be administered (Baldus & Woodworth, 2003a). Activists voiced concerns about the nearly unrestricted amount of discretion in the process and how it could lead to inconsistent, or arbitrary and capricious, application of capital sentences based on factors such as race. During the 1960s, a recommended guide to state legislatures was released by the American Law Institute in the form of the Model Penal Code. The suggestions in this document were intended, in part, to constrain some of the discretion in death penalty cases. Specifi cally, there were recommendations that capital punish- ment should be an option to prosecutors for only certain types of cases and that jury members should have to make decisions about the presence of aggravating and mitigating factors in each case before
31 Race and the Death Penalty
making the sentencing decision (Baldus & Woodworth, 2003a). Some of the institute’s recommenda- tions were the center of a death penalty challenge ruled on by the Supreme Court in McGautha v. California (1971).
Attorneys for the petitioner in McGautha argued that capital juries should have structured guidance in death penalty cases and that there should be a distinct phase for determining guilt of a defendant before a second penalty phase reserved for the purpose of deliberating on the punishment. The court ruled that “[f]or a court to attempt to catalog the appropriate factors in this elusive area could inhibit rather than expand the scope of consideration, for no list of circumstances [for jury consideration] would ever be really complete” (p. 192). The court went on to rule that the Constitution only guarantees the rights of defendants be maintained throughout the process of a fair trial, and that a capital trial with separate guilt and punishment phases does not make the capital process a better one. Nonetheless, these same types of issues, as well as others, were viewed differently by the court just a year later in Furman v. Georgia .