The Death Penalty in the OSCE Area 37 per se, it did hold that the death penalty “could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.”34 In the Court’s view, under the capital sentencing schemes invalidated in Furman, death sentences were imposed in an arbitrary and capricious manner because “there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not.”35 Within four years of the Furman decision, 35 states and the federal government had enacted new statutes that provided for the death penalty for certain homicide offences. The states responded to the concerns expressed by the Court in Furman either by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence or by making the death penalty mandatory for specific crimes. As convictions obtained under the new procedures were reviewed by the Supreme Court, a body of Eighth Amendment death penalty jurisprudence evolved. In approving Georgia’s new capital sentencing scheme, the Court in Gregg concluded that, in order to minimize the risk of arbitrary and capricious imposition, discretion to impose a death sentence must be suitably directed and limited by standards that take into account the circumstances of the offence and the character and propensities of the offender.36 The Court invalidated the mandatory death penalty statutes that were enacted in response to Furman, in part on the ground that they failed to allow for individualized consideration of the offence and the character and background of the offender.37 In the thirty years following Gregg, the Eighth Amendment capital sentencing requirements that had their genesis in Furman have continued to be refined. It is now well-established that a valid capital sentencing scheme must have two components. First, under a valid capital sentencing scheme, not every homicide offender can be eligible for the death penalty.38 The eligibility (or narrowing) component requires a jury to determine whether a defendant falls within a narrowed class of homicide offenders.39 The narrowing may be accomplished by the jury’s finding of an aggravating factor in addition to guilt, or by narrowly defining those offences for which a sentence of death is available.40 34 35 36 37 Gregg at 169. Furman, 408 U.S. at 311 (White, J., concurring). Id. at 189, 206. See Woodson v. North Carolina, 428 U.S. 280, 303-305 (1976); Stanislaus Roberts v. Louisiana, 428 U.S. 325, 333-336 (1976); Harry Roberts v. Louisiana, 431 U.S. 633, 637 (1977); Sumner v. Shuman, 483 U.S. 66, 74-77, 85 (1987). 38 39 See Arave v. Creech, 507 U.S. 463, 474 (1993). See Tuilaepa v. California, 512 U.S. 967, 972 (1994); Lowenfield v. Phelps, 484 U.S. 231, 244 (1988); Zant v. Stephens, 462 U.S. 862, 877 (1983). 40 See Lowenfield v. Phelps, 484 U.S. at 244-246.