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U.S. Supreme Court elected to again consider the constitutionality of the death penalty as it reviewed revised capital sentencing laws in several states. The court examined two different approaches to improve capital sentencing procedures from fi ve states. Some states implemented mandatory death sentences for particular crimes, which were challenged in Roberts v. Louisiana (1976) and Woodson v. North Carolina (1976). The court did not accept the mandatory sentencing legislation in these cases but did go on to accept the guided discretion models set forth in three other cases. The Supreme Court ruled that administration of capital sentences could meet the requirements of the Eighth and Fourteenth Amendments if the states would give capital jurors guided discretion as set forth in Gregg v. Georgia (1976); Jurek v. Texas (1976); and Proffi tt v. Florida (1976). States could meet constitutional requirements if they created statutes that would give capital jurors information and instructions to guide them in deciding the appropriate punishment. States created lists of aggravating circumstances, described procedures that should be used in weighting aggravating and mitigating circumstances, and implemented bifurcated capital trials with comparative proportionality and appellate review (Poveda, 2009). These changes served to limit death eligibility to cases deemed most appropriate for capital punishment (Shatz & Dalton, 2013).

The next year, the class of eligible cases was restricted further when the court ruled that death was not an appropriate sentence for rape of an adult when the victim was not killed ( Coker v. Georgia , 1977). This decision was not made on grounds of the tremendous racial disparities evident within the system but because “a sentence of death is grossly disproportionate and excessive punishment [when the victim did not die] and is therefore forbidden by the Eighth Amendment” (p. 592). As was true of the arbitrariness logic used in Furman , this reasoning permitted the court to continue circumvent- ing the issue of racial discrimination in capital punishment and perpetuate an ideology that, instead of being intractably grounded in racist history, problems with the death penalty are rectifi able through legalistic decree (Steiker & Steiker, 2016). Nevertheless, once a case was deemed death eligible, jury members continued to have a great deal of discretion in their sentencing decisions as long as they followed the structured guidelines or jury instructions. And there is still the question of whether aver- age jury members can comprehend legal guidelines and instructions and ultimately apply the death penalty in a consistent and unbiased manner from case to case (Baldus, Pulaski, & Woodworth, 1983; Baldus, Woodworth, and Pulaski, 1990; Bedau, 1997; Blankenship, Luginbuhl, Cullen, & Redick, 1997; Bowers, 1995; Bowers & Pierce, 1980; Diamond, 1993; Diamond & Levi, 1996; Luginbuhl, 1992; Luginbuhl & Howe, 1995).

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There were other challenges to the death penalty after its reinstatement, beginning in 1976. Race was still a big issue for objectors, and the court still had not directly considered evidence concerning racial disparities and discrimination, or whether the post- Furman systems had resulted in a reduction in such inconsistencies (Baldus & Woodworth, 2003a). Perhaps part of the reluctance to challenge capital punishment with empirical fi ndings based on race stemmed from the Washington v. Davis (1976) precedent. While this case was about employment procedures, not the death penalty, the court ruled that proof of disproportionate impact alone is not enough to establish unconstitutional discrimination.

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