                       IN THE SUPREME COURT OF TENNESSEE
                                   AT JACKSON
                                        November 15, 2000 Session

                       STATE OF TENNESSEE v. JAMES P. STOUT

                       Automatic Appeal from the Court of Criminal Appeals
                                 Criminal Court for Shelby County
                    Nos. 96-08227, 96-08228, 96-08229   Joseph B. Dailey, Judge



                          No. M1998-00079-SC-DDT-DD - Filed May 24, 2001



ADOLPHO A. BIRCH, JR., J., concurring and dissenting.

         Although I agree with the majority’s decision to uphold the conviction in this case, I write
separately to emphasize my continued dissatisfaction with Tennessee’s comparative proportionality
review protocol. Beginning with my dissent in State v. Chalmers, I have repeatedly called for reform
of the protocol. 28 S.W.3d 913, 923-25 (Tenn. 2000) (Birch, J., concurring and dissenting); see also,
e.g., State v. Carruthers, 35 S.W.3d 516, 581 (Tenn. 2000) (Birch, J., concurring and dissenting);
State v. Keen, 31 S.W.3d 196, 234 (Tenn. 2000) (Birch, J., concurring and dissenting). Our current
protocol, in my view, has three shortcomings: “the ‘test’ we employ [for comparative proportionality
review] is so broad that nearly any sentence could be found proportionate; our review procedures are
too subjective; and the ‘pool’ of cases which are reviewed for proportionality is too small.”
Chalmers, 28 S.W.3d at 923 (Birch, J., concurring and dissenting). Unless these shortcomings are
remedied, this Court cannot provide genuine assurance that disproportionate sentences of death will
be set aside.

       “I am unwilling to approve of results reached through the use of a procedure with which I
cannot agree,”1 and to date, the flaws I perceive in our comparative proportionality review protocol
have not been cured. Therefore, I dissent, respectfully, from the Court’s decision to impose the death
penalty in this case.



                                                                ___________________________________
                                                                ADOLPHO A. BIRCH, JR., JUSTICE



       1
           See Coe v. S tate, 17 S.W.3d 193, 248 -49 (Tenn. 2000) (Birch, J., dissenting).
