Chief among the provisions of Alabama's sentencing scheme is that the jury issues an advisory sentence that the sentencing judge must consider in imposing a sentence. Although the provision does not specify the weight a judge must give to the jury's advisory verdict, the Court's majority concluded that this provision does not violate the eighth amendment, since it does not result in arbitrary or capricious sentences. This note concludes that, contrary to the Court's opinion, Alabama's scheme violates the eighth amendment, since it does result in arbitrary and capricious sentences. The author argues that the standards imposed by the eighth amendment as interpreted by previous Court decisions mandate a scheme that provides more guidance to the sentencer than the Alabama scheme. An examination of the differing standards used by the Alabama trial court judges in their sentencing opinions provides direct evidence of the arbitrary results of the Alabama sentencing scheme. The Court's majority opinion avoided a thorough examination of precedent and of the realities of sentencing in Alabama by simply concluding that the Court does not have the power to legislate. 252 footnotes