The opinion
Darrell Hickman, Justice, dissenting.
A majority of the justices of the United States Supreme Court, while disagreeing on the legal and moral questions of the death penalty, have agreed it is the arbitrary or freakish use of the penalty rather than the punishment itself which violates the United States Constitution. See Furman v. Georgia, 408 U.S. 238 (1972). In this context the Supreme Court finally approved the law and procedure in Georgia. Gregg v. Georgia, 428 U.S. 153 , 96 S. Ct. 2909 (1976). The two opinions approving the Georgia law and procedure commented especially on two areas of responsibility — sentencing at the trial level and review of the sentence by the state appellate court. In Georgia, the trial judge must review the sentence and file a special written report justifying the death penalty. Appeal to the Georgia Supreme Court is prompt and automatic. The Georgia court determines if the death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor. A special assistant to the court accumulates records of all capital cases for use in comparison. The sentence is then compared with sentences in similar cases to determine if it is excessive or disproportionate. The Georgia court has found that the law imposes on it a duty to set aside a death sentence that is out-of-line with the penalty in similar cases.
In the two opinions approving the Georgia law, special comment was made regarding the Georgia appellate review as a check against the random or arbitrary use of the death penalty. In the opinion written by Justice Stewart, the court said:
It is apparent that the Supreme Court of Georgia has taken its review responsibilitites seriously. Gregg, 428 U.S. 153 , 96 S. Ct. 2909, 2940 (1976).
The opinion written by Justice White, after commenting on prompt and automatic review, report of the trial judge, comparison of similar cases and a history of setting aside excessive penalties, stated:
Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Gregg, 428 U.S. 153 , 96 S. Ct. 2909, 2949 (1976).
In comparison, Arkansas has no provision for a special report by the trial judge; there is no mandatory appeal law; there is no special assistant collecting records of capital cases; there is no provision for comparing sentences; there is no recent history of reducing cases simply because they are excessive. To the contrary, this court reversed itself and found there was no legal authority to reduce a sentence simply because it was excessive. Osborne v. State, 237 Ark. 5 , 371 S.W. 518 (1963). The Arkansas Legislature, after the Osborne case, gave this court the express authority to reduce sentences simply because they were excessive. Ark. State. Ann. § 43-2725.2 (Supp. 1975). This court even rejected that law, stating that such a power was unconstitutional because it amounted to the use of clemency power. Hooper v. State, 257 Ark. 103 , 514 S.W. 2d 394 (1974).
The majority opinion quotes some cases in the early history of this court as evidence that this court has reduced sentences as excessive. See Hadley v. State, 196 Ark. 307 , 117 S.W. 2d 352 (1938). However the Hadley case and other similar cases were specifically overruled by the Osborne case. The language of the Osborne case could not be more specific, and I quote it for emphasis.
Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80 , 173 S.W. 2d 122 , we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const., Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh.
If this language were not enough, it was made perfectly clear in the Hooper case that this court would not reduce a sentence because it was excessive, or was based on passion and prejudice. For emphasis, I will quote the language from the Hooper case.
Finally, it is asserted that the verdict of the Jury is excessive and indicates passion and prejudice on the part of the jury. We have held that we have no authority to reduce a sentence that is not in excess of statutory limits, and we have consistently, in recent years, followed that rule.
The majority opinion, although implying otherwise, makes it clear the Osborne and Hooper cases will continue to be the law followed by a majority of the court. This means a sentence to death will not be reduced because it is excessive, out-of-line with punishment in similar cases, or the result of passion or prejudice.
I believe the decisions of this court in the Osborne and Hooper cases were wrong and should be overruled. It is not a matter of clemency to correct an injustice; it is simply the law at work.
The same date the Gregg case was published, the U.S. Supreme Court also approved the capital punishment laws in Florida and Texas. In approving the capital punishment laws in these states, the court used the principles of the Gregg case as an example; although the opinions were brief, the message was the same — the responsible use of capital punishment. Commenting on the Florida law, the court stated:
In fact, it is apparent that the Florida Court has undertaken responsibly to perform its function of death sentence review with a maximum of rationality and consistency. For example, it has several times compared the circumstances of a case under review with those of previous cases in which it has assessed the imposition of death sentences. Proffit v. Florida, 428 U.S. 242 , 96 S. Ct. 2960, 2969 (1976).
Reviewing the Texas law, the court stated:
By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the even-handed, rational and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be “wantonly” or “freakishly” imposed, it does not violate the Constitution. Jurek v. Texas, 428 U.S. 262 , 96 S. Ct. 2950, 2958 (1976).
Comparing the procedures approved in these three cases with those in Arkansas, there is little doubt that a great deal remains to be done before the Arkansas law and procedure will be approved by the Supreme Court. First, there must be a law that the appeal of capital cases is prompt and automatic. Second, a majority of this court must accept the responsibility and see as its duty the obligation to compare sentences and to reduce any disproportionate sentence. Third, a majority of this court must recognize the authority and accept the duty to reduce any sentence found to be arbitrary, excessive or the result of passion or prejudice. In other words, this court cannot place the entire responsibility of the death penalty on the jury and the trial court, but must assume responsibility for insuring that the death penalty is rationally and fairly imposed.
It is clear to me that the Supreme Court of the United States would like nothing better than to put this matter at rest. However, approval is predicated on a procedure for a fair and impartial sentence at the trial level, and a procedure for prompt and meaningful review by the appellate court.
The majority of this court cannot yet see all the deficiencies in the Arkansas law, but to me they are quite clear. Therefore, I will dissent.