474 U.S. 973 (1985)

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U.S. Supreme Court

DEGARMO v. TEXAS , 474 U.S. 973 (1985)

474 U.S. 973

No. 85-5141

Supreme Court of the United States

November 4, 1985

On petition for writ of certiorari to the Court of Criminal Appeals of Texas.

The petition for writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

In Gregg v. Georgia, 428 U.S. 153 ( 1976), six Justices concluded that a capital sentencing scheme that directs and limits the jury's discretion minimizes the risk of arbitrary and freakish imposition of the death penalty and thereby cures the defects that led the Court in Furman v. Georgia, 408 U.S. 238, 33 L. Ed.2d 346 (1972), to invalidate capital punishment as unconstitutionally cruel and unusual. I dissented in Gregg because I do not believe that the unconstitutionality of capital punishment depends upon the procedures under which the penalty is inflicted. In my view, the constitutional infirmity in the punishment of death is that "it treats 'members of the human race as nonhumans, as objects to be toyed with and discarded' " and is thus " 'inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity.' " Gregg, supra, 428 U.S., at 230 (BRENNAN, J., dissenting) (quoting Furman v. Georgia, supra, 408 U.S., at 273).

I have adhered to this view that capital punishment is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. I do so again today. But even if I agreed that capital punishment is constitutional if imposed in a rational and nondiscriminatory manner, I remain convinced that the Court deludes itself when it insists that the infliction of the death penalty, as currently administered, is not

Page 474 U.S. 973 , 974

arbitrary or capricious under any meaningful definition of those terms. See Pulley v. Harris, 465 U.S. 37, 59, 884 ( 1984) (BRENNAN, J., dissenting). This case demonstrates just one way in which capital sentencing schemes have failed to eliminate arbitrariness in the choice of who is put to death.

With the aid of Helen Mejia, Roger DeGarmo kidnaped and murdered a young woman. DeGarmo was subsequently convicted of capital murder and condemned to die by lethal injection. As part of a plea bargain, Mejia- whose participation made her equally subject to prosecution under the capital murder statute-received a sentence of only 10 years' deferred probation. In other words, while the State sought and may soon succeed in putting DeGarmo to death, it did not care to see his accomplice serve even a day in jail for participating in the same offense. This gross disparity in treatment is solely a product of the prosecutor's unfettered discretion to choose who will be put in jeopardy of life and who will not.*

I believe that such a disparity in treatment is alone sufficient grounds to set aside DeGarmo's death sentence as disproportionate under the circumstances. Cf. Pulley v. Harris, supra, 465 U.S., at 43, 104 S.Ct ., at 875; Solem v. Helm, 463 U.S. 277 ( 1983). More importantly, however, this disparity in treatment highlights the utter failure of the elaborate sentencing schemes approved by the Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of [474 U.S. 973 , 975]

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