Proportionality and Prosecutorial Discretion: Challenges to the Constitutionality of Georgia’s Death Penalty Laws and Procedures amidst the Deficiencies of the State’s Mandatory Appellate Review Structure

Beginning with the U.S. Supreme Court decisions in Furman v. Georgia' and Gregg v. Georgia, 2 challenges to the death-penalty laws, policies, and procedures of the State of Georgia have shaped the constitutional jurisprudence applicable to capital-punishment cases nationwide.Now, following the Supreme Court's recent denial of certiorari in Walker v. Georgia'-in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court's precedent regarding the importance of a thorough proportionality review to Georgia's capital-sentencing scheme, 4 and in which Justice Stevens emphasized that the Court's refusal to hear the case was the result of a procedural technicality and not a decision on the merits'-the Court once again seems poised to reexamine the constitutional implications of Georgia's death-penalty statute and the manner in which it is implemented.In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring prudence and temperance in the infliction of death, this article dissects the grave and constitutionally impermissible flaws inhering in Georgia's current system of capital punishment, with a particular focus on the failures of the mandatory state supreme court proportionality review.The article thus begins with an assessment of Georgia's capitalt Associate, King & Spalding; J.D., University of Virginia; B.A., University of Notre Dame. 1. 408 U.S. 238 (1972).2. 428 U.S. 153 (1976).3. 129 S. Ct. 453 (2008) (mem.).4. Compare id. at 483 ( 2008) (Thomas, J., concurring) ("[U]nder this Court's precedents, Georgia is not required to provide any proportionality review at all."), with id. at 454 (Stevens, J., concurring) ("Our decision in [Gregg] to uphold the later enacted statute was founded on an understanding that the new procedures the statute prescribed would protect against the imposition of death sentences influenced by impermissible factors such as race.").5. See id.(Stevens, J., concurring) ("That [procedural] argument provides a legitimate basis for this Court's decision to deny review.I write separately to emphasize that the Court's denial has no precedential effect ....").