The Limits of Legal Language: Decisionmaking in Capital Cases

It is argued that current sentencing instructions could be improved by focusing on more narrow, achievable goals and by adopting an approach to capital sentencing that differs significantly from that in Furman vs. Georgia (1972). Proposed model instructions seek to limit the class of the death eligible and at the same time seek to communicate to sentencers in clear terms the nature and scope of their decisionmaking power. The instructions seek to correct 2 central respective failings of the pre- and post-Furman paradigms. The "standardless discretion" approach embodied in the pre-Furman statutes offers no protection to those defendants who are not truly among the "worst" offenders. The "guided discretion" approach reflected in contemporary statutes structures the death penalty decision in ways that are unhelpful and misleading, thereby undermining sentencer accountability.