Two Perspectives on Structuring Discretion: Justices Stewart and White on the Death Penalty

Abstract

In Furman v. Georgia,' both Justices Stewart and White joined the majority of the United States Supreme Court in holding discretionary death penalty statutes unconstitutional. In their separate concurring opinions, each Justice indicated that some methods of imposing the death penalty might be constitutional, even though discretionary imposition of the death penalty was not.2 After Furman, both Justices Stewart and White agreed that statutes providing for the imposition of the death penalty in accordance with certain standards were constitutional.3 They disagreed, however, over whether death penalty statutes were constitutional means of imposing death. Justice Stewart joined the Court's majority in declaring two slightly different mandatory death penalty statutes unconstitutional.4 But, Justice White dissented in each of these cases maintaining that mandatory death penalty statutes are constitutional.5 In essence, fundamental theoretical differences led each Justice to frame the issues differently in death penalty cases and accounted for the diverse outcomes. These fundamental differences are never fully articulated in the opinions, but nonetheless are of far ranging significance not only in capital cases, but in the criminal law in general. This article illustrates that Justice Stewart's punishment theory relies heavily upon procedural devices to individualize the decision of im-