                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                    June 4, 2002 Session

           STATE OF TENNESSEE v. RICHARD HALE AUSTIN
                         Appeal from the Court of Criminal Appeals
                            Criminal Court for Shelby County
                         No. B-58357 C. Creed McGinley, Judge


              No. W1999-00281-SC-DDT-DD - Filed September 16, 2002



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

        In a line of dissents, I have maintained that the comparative proportionality
review process currently embraced by this Court fails. It fails because it does not operate
to protect defendants from the arbitrary and disproportionate imposition of the death
penalty. See, e.g., State v. Godsey, 60 S.W.3d 759, 793 (Tenn. 2001) (Birch, J.,
concurring and dissenting); State v. Bane, 57 S.W.3d 411, 431 (Tenn. 2001) (Birch, J.,
concurring and dissenting); State v. Chalmers, 28 S.W.3d 913, 923 (Tenn. 2000) (Birch,
J., concurring and dissenting); State v. Keen, 31 S.W.3d 196, 234 (Tenn. 2000) (Birch, J.,
dissenting). This case is no different.

         The predominant principle underlying comparative proportionality review is that
it is unjust to impose a death sentence upon one defendant when other defendants,
convicted of the same crimes with similar facts, receive sentences of life imprisonment
(with or without parole). Godsey, 60 S.W.3d at 793. Based on this principle, and
pursuant to Tennessee Code Annotated § 39-13-206(c)(1), this Court must conduct a
comparative proportionality review of every death sentence for the purpose of
“determining whether the death penalty is unacceptable in a particular case because it is
disproportionate to the punishment imposed on others convicted of the same crime.”
State v. Henderson, 24 S.W.3d 307, 314 (Tenn. 2000) (citing State v. Hall, 8 S.W.2d 593,
604 (Tenn. 1999)).

        In theory, the comparative proportionality review protocol seems ideal and
workable; however, as I have often stated, albeit in gentler terms, it just does not work.
Three flaws ensure the unreliability of the review process: (1) the proportionality test is
so broad that nearly every sentence is pronounced proportionate; (2) the “pool” of cases
used for comparison is entirely too small; and (3) the review process itself is much too
subjective. Chalmers, 28 S.W.3d at 923 (Birch, J., concurring and dissenting). If this


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Court is to adequately protect against the disproportionate imposition of the death
sentence, these flaws must be corrected. Bane, 57 S.W.3d at 431 (Birch, J., concurring
and dissenting).

       Until the issues I have continually raised are addressed, I hold that this Court
cannot thoroughly and adequately fulfill its statutory duty to review death penalty cases
to ensure that a defendant’s death sentence is proportionate.



                                            __________________________________
                                            ADOLPHO A. BIRCH, JR.




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