ABSTRACT
The post-Furman era of capital punishment was introduced with the Supreme Court’s approval of legislation that promised to harness sentencing discretion and hence minimize, if not eliminate, the attendant arbitrariness—invidious discrimination, freakishness, irregularity—that various justices had perceived as tainting the administration of the earlier death-penalty laws. The Court upheld the new “guided discretion” capital-sentencing statutes in 1976, shortly after their enactment. Having scant opportunity to examine actual sentencing practices under the revised laws, the justices’ focus was confined almost exclusively to the text of the statutes. Yet the written laws revealed little more than how the novel sentencing procedures were designed to operate. It remained to be seen whether the “laws in practice,” i.e., how the capital-sentencing statutes actually were applied in the jurisdictions that had adopted them, conformed to the Court’s expectations concerning the “laws on the books.”
