State v. Keen

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 12, 2000 Session
STATE OF TENNESSEE v. DAVID M. KEEN
Appeal from the Criminal Court for Shelby County
No. 90-06629 John P. Colton, Judge
No. W1997-00147-SC-DDT-DD - Filed October 5, 2000
ADOLPHO A. BIRCH, JR., J., dissenting.
In State v. Chalmers, I filed a separate Concurring and Dissenting Opinion to state my view
that Tennessee’s comparative proportionality review procedure is constitutionally inadequate. ___
S.W.3d ___ (Tenn. 2000) (Birch, J., concurring and dissenting). Although a significant portion of
that dissent was devoted to a discussion of the role of race in comparative proportionality review,
I also raised three general concerns with regard to comparative proportionality review which are
relevant here: “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.” Id. (Birch, J., concurring and
dissenting). Based on those concerns, I concluded that our current comparative proportionality
review protocol “fails to protect defendants from the arbitrary or disproportionate imposition of the
death penalty.” Id. (Birch, J., concurring and dissenting). I adhere to this view.
As I have expressed on previous occasions in the context of other dissents, “I am unwilling
to approve of results reached through the use of a procedure with which I cannot agree.” See Coe
v. State, 17 S.W.3d 193, 248-49 (Tenn. 2000) (Birch, J., dissenting). Accordingly, because the flaws
in our comparative proportionality review protocol have neither been addressed nor corrected, I
dissent from the Court’s decision to impose the death penalty in this case and would remand the
cause for the imposition of a sentence of life imprisonment with or without the possibility of parole.
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ADOLPHO A. BIRCH, JR., JUSTICE