NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 4: Capital Punishment Handbook: Sentencing Phase Issues

        4.8 Mitigating Circumstances
               4.8.1  Consideration Of All Relevant Mitigating Circumstances
               4.8.2  Scope Of Mitigating Factors
                         4.8.2.1  Minimal Participation In Crime
                         4.8.2.2  Youth/Family History
                         4.8.2.3  Good Prison Behavior/Potential For Rehabilitation
                         4.8.2.4  Mental Retardation
                         4.8.2.5  Lack Of Significant Prior Criminal Activity/Violence
                         4.8.2.6  Coercion
                         4.8.2.7  Good Character
                         4.8.2.8  "Catch All"
                         4.8.2.9  Reliable Hearsay Evidence
                         4.8.2.10  Polygraph Evidence
               4.8.3  Improper Mitigating Evidence
                         4.8.3.1  Irrelevant Evidence
                         4.8.3.2  Residual Doubt of Defendant’s Guilt
                         4.8.3.3  Sympathy And Passion
                                      4.8.3.3.1  Retroactivity Of California v. Brown
               4.8.4  Burden Of Persuasion
                           4.8.4.1  Retroactivity of Mills v. Maryland

In the post-Furman era, the Supreme Court established that the Eighth Amendment prohibition against cruel and unusual punishment requires the individualized consideration of mitigating circumstances in determining a sentence of death. In Lockett v. Ohio, 438 U.S. 586 (1978), and later in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Court ruled that the sentencer must consider all relevant mitigating evidence in a capital case. In Skipper v. South Carolina, 476 U.S. 1, 4 (1986), the Court, quoting Eddings, stated that the sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Thus, the capital sentencer must consider both statutory and nonstatutory mitigating evidence. In Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), the Court held that the trial judge must instruct the jury that it may consider evidence presented by the defendant of nonstatutory mitigating factors. In Delo v. Lashley, 507 U.S. 272 (1993), the Court clarified its precedent on mitigating jury instructions holding that such instructions are constitutionally required only when supported by evidence.

In Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), the Court held that Mr. Penry’s second sentencing trial was constitutionally flawed because the jury instructions were internally inconsistent. Although the additional supplemental instruction mentioned mitigating evidence, in order to consider the evidence in mitigation, the jury would have to disregard the instructions on answering the special issues.

Oregon v. Guzek, 126 S. Ct. 1226 (2006) (holding that Constitution does not prohibit State from limiting the innocence-related evidence a capital defendant may introduce at trial; explaining that Supreme Court had not interpreted Eighth Amendment as providing such defendant a right to introduce at sentencing alibi evidence designed to cast residual doubt on his guilt of basic crime of conviction).

Smith v. Texas, 125 S. Ct. 400 (2004) (per curiam) (holding that an instruction that directed the jury to give effect to mitigation evidence, but allowed the jury to do so only by negating what would otherwise be affirmative responses to two special issues relating to deliberateness and future dangerousness was constitutionally inadequate under Penry II).

Tennard v. Dretke, 542 U.S. 274 (2004) (holding that the Fifth Circuit assessed a capital habeas petitioner’s Penry v. Lynaugh claim under an improper standard: that is, by applying a threshold test to the petitioner’s mitigating evidence presented at the penalty phase of the trial that he had an IQ of 67 as to whether it was evidence of a “uniquely severe permanent handicap” that bore a “nexus” to the crime; noting that the “Eighth Amendment requires that the jury must be able to consider and give effect to” a capital defendant's mitigating evidence).

Penry v. Johnson, 532 U.S. 782 (2001) (Penry II) (reversing death sentence because jury had no way to meaningfully consider supplemental mitigation instruction).

Buchanan v. Angelone, 522 U.S. 269 (1998) (holding that jury need not be instructed specifically on particular statutory mitigating factors as long as jury is instructed that all mitigating evidence should be considered).

Delo v. Lashley, 507 U.S. 272 (1993) (upholding trial court’s refusal to give instruction in sentencing phase that jury could consider petitioner’s lack of significant prior criminal activity because petitioner presented no evidence of prior criminal history and Constitution does not obligate court to give mitigating circumstance instruction when no evidence offered to support it).

Boyde v. California, 494 U.S. 370 (1990) (holding states are free to structure and shape consideration of mitigating evidence in effort to achieve more rational and equitable administration of death penalty).

Blystone v. Pennsylvania, 494 U.S. 299 (1990) (stating requirement of individualized sentencing in capital cases is satisfied by allowing jury to consider all mitigating evidence).

Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I) (holding Texas death penalty statute–as applied–unconstitutional as impermissibly restricted the jury’s consideration of Penry’s mental retardation as mitigating evidence).

Franklin v. Lynaugh, 487 U.S. 164 (1988) (affirming death sentence on facts of this case; however five Justices stating that Texas death penalty scheme may or does violate Lockett because jury cannot consider all mitigating evidence).

Hitchcock v. Dugger, 481 U.S. 393 (1987) (holding death sentence unconstitutional where advisory jury was precluded from considering nonstatutory mitigating circumstances and trial judge also refused to do so).

Skipper v. South Carolina, 476 U.S. 1 (1986) (stating sentencer cannot be precluded from considering as mitigating factor any evidence that defendant offers as basis for sentence less than death).

Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding sentencing court’s refusal to consider defendant’s difficult family history as mitigating factor violates Lockett).

Bell v. Ohio, 438 U.S. 637 (1978) (holding capital statute unconstitutional because it precluded consideration of circumstances offered in mitigation).

Lockett v. Ohio, 438 U.S. 586 (1978) (holding capital sentencing procedure, to be constitutional, must permit consideration, as a mitigating circumstance, of “any aspect of the defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”).

Babbitt v. Calderon, 151 F.3d 1170, 1178 (9th Cir. 1998) (finding California jury instruction constitutional, allowing jury to consider “[a]ny other circumstance which extenuates the gravity of the crime,” even though the court did not define “extenuates” and the jury was not told which factors it could consider as extenuating), cert. denied, 525 U.S. 1159 (1999).

Langford v. Day, 110 F.3d 1380 (9th Cir. 1996) (holding, where defendant and counsel do not ask to find mitigation, Eighth Amendment does not require sentencing court to search record to address specifically less-than-substantial unenumerated mitigating factors neither offered nor pointed out as mitigation at time of sentencing), cert. denied, 522 U.S. 881 (1997).

Rupe v. Wood, 93 F.3d 1434 (9th Cir. 1996) (holding that failure to allow jury to hear key state witness’ polygraph results violates defendant’s Eighth Amendment right to have all relevant mitigating evidence admitted at sentencing), cert. denied, 519 U.S. 1142 (1997).

Jeffries v. Blodgett, 5 F.3d 1180 (9th Cir. 1993) (holding instructions stating whether there were sufficient mitigating circumstances to merit leniency and for the jury to consider “any relevant factors” did not preclude jury from giving full effect to mitigating evidence), cert. denied, 510 U.S. 1191 (1994).

Creech v. Arave, 928 F.2d 1481, 1489 (9th Cir. 1991) (holding defendant must be permitted to present new mitigating evidence on resentencing), rev’d on other grounds, 507 U.S. 463 (1993).

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (holding court may not refuse to consider evidence which is not “sufficiently substantial to call for leniency”).

McKenzie v. Risley, 842 F.2d 1525 (9th Cir.) (en banc) (holding Montana statute does not list mitigating circumstances and does not set out procedure for considering them; no constitutional violation because trial judge gave defendant full opportunity to present mitigating evidence), cert. denied, 488 U.S. 901 (1988).

Wash. Rev. Code § 10.95.070 (2002) (listing factors to consider for leniency in capital sentencing).

Craig Haney, Symposium, The Social Context of Capital Murder: Social Histories and the Logic of Mitigation, 35 Santa Clara L. Rev. 547 (1995) (addressing societal image and stereotypes of capital criminals and commenting on role of mitigation at sentencing).

Mary Kay Sicola & Richard R. Shreves, Jury Consideration of Mitigating Evidence: A Reviewed Challenge to the Texas Death Penalty Statute, 15 Am. J. Crim. L. 55 (1988) (addressing infirmities in Texas death penalty procedure resulting from failure to effectively guide jury in considering and acting upon mitigating evidence during sentencing).

Joshua N. Sondheimer, Note, A Continuing Source of Aggravation: The Improper Consideration of Mitigating Factors in Death Penalty Sentencing, 41 Hastings L.J. 409 (1990) (discussing “double-edged sword” nature of mitigating factors that can also weigh against defendant, such as those indicating future dangerousness, arguing that modern death penalty statutes are thus just as arbitrary and irrational as pre-Furman era).

Scott E. Sundby, The Lockett Paradox: Reconciling Guided Discretion and Unguided Mitigation in Capital Sentencing, 38 UCLA. L. Rev. 1147 (1991) (examining changes in Court’s Eighth Amendment jurisprudence since Lockett and addressing conflict between guided discretion of post-Furman cases and full mitigation under Lockett).

Jonathan P. Tomes, Damned if You Do, Damned if You Don’t: The Use of Mitigation Experts in Death Penalty Legislation, 24 Am. J. Crim. L. 359 (1997) (reviewing practical use and impact of using mitigation experts from practitioner’s perspective).

Since the capital sentencer must consider “any” relevant mitigating factors, no finite list of mitigating factors exists. However, there are several common categories of mitigating circumstances which the Supreme Court and the circuits have specifically discussed.

Lockett v. Ohio, 438 U.S. 586 (1978) (involving minimal participation in crime as mitigating factor).

Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) (holding refusal of trial court to admit at penalty phase circumstantial evidence that petitioner’s co-defendant and a third party, rather than petitioner, might have planned the murder in question was constitutional error), cert. denied, 507 U.S. 951 (1993).

Johnson v. Texas, 509 U.S. 350 (1993) (holding Texas special issues allowed adequate consideration of defendant’s youth because ample room in future dangerousness assessment for juror to take into account youth as mitigating factor).

Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding sentencing court’s refusal to consider defendant’s difficult family history as mitigating factor violates Lockett).

Skipper v. South Carolina, 476 U.S. 1 (1986) (holding evidence that defendant has adjusted well to incarceration is relevant mitigation evidence, and exclusion violates Lockett).

McClain v. Calderon, No. CV 89-3061 JGD, 1995 WL 769176 (C.D. Cal. Aug. 22, 1995) (holding trial judge should have allowed defense attorneys to introduce psychological evidence to support claim that defendant would not be threat to prison employees if sentenced to life), aff’d, 134 F.3d 1383 (9th Cir.), and cert. denied, 545 U.S. 942 (1998).

In Penry v. Lynaugh, 492 U.S. 302 (1989), the Supreme Court held that mental retardation may be considered as a mitigating factor, but that executing mentally retarded persons was not categorically prohibited by the Eighth Amendment. However, more recently the Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court recognized that not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus against execution. The Court left to the states “the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” Id. at 317. For further discussion of Atkins, see § 1.6.

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing the mentally retarded violates the Eighth Amendment’s prohibition against cruel and unusual punishment). 

Penry v. Lynaugh, 492 U.S. 302 (1989) (holding mental retardation may be considered mitigating factor).

Harris v. Pulley, 885 F.2d 1354, 1383 (9th Cir. 1988) (holding, while Zant suggests mental illness may be mitigating, evidence regarding petitioner’s personality disorder need not be identified as mitigating), cert. denied, 493 U.S. 1051 (1990).

Delo v. Lashley, 507 U.S. 272 (1993) (involving mitigating factor of lack of prior criminal activity).

Hitchcock v. Dugger, 481 U.S. 393 (1987) (involving lack of prior criminal activity as mitigating factor).

Glass v. Butler, 820 F.2d 112 (5th Cir. 1987) (holding, on facts of case, “coercion” could be considered mitigating factor).

Jernigan v. Collins, 980 F.2d 292 (5th Cir. 1992) (holding Texas sentencing statute did not prevent jury from giving mitigating effect to petitioner’s evidence of good character), cert. denied, 508 U.S. 978 (1993).

Brown v. Payton, 125 S. Ct. 1432 (2005) (ruling that the Ninth Circuit exceeded the limits on federal habeas review imposed by § 2254(d) in concluding that the California Supreme Court had unreasonably applied Boyde v. California, 494 U.S. 370 (1990), in holding that the California “factor (k)” catchall mitigating factor was not unconstitutionally ambiguous as applied in petitioner’s case; holding that it could not be said that the California Supreme Court acted unreasonably in reading Boyde as establishing that factor (k)’s text was broad enough to accommodate petitioner’s postcrime mitigating evidence of religious conversion and good behavior in prison where the factor directed consideration of any circumstance that might excuse the crime; also holding that even assuming that the state supreme court was incorrect in concluding that the prosecutor’s argument did not mislead the jury into believing it could not consider the petitioner’s post-crime mitigation evidence, that court’s conclusion was not unreasonable and was just the type of decision that AEDPA shields on habeas review).

Sims v. Brown, 425 F.3d 560 (9th Cir.) (holding as to a pre-AEDPA capital habeas petition, that petitioner’s Eighth and Fourteenth Amendment rights were not violated by the prosecutor’s closing argument in the penalty phase about “factor (k),” the last factor in mitigation under California law that covers “any other circumstance which extenuates the gravity of the crime,” because there was no reasonable possibility that the jury was misled to believe it could not consider petitioner’s background, including childhood abuse, in mitigation), as amended on denial of reh’g, 430 F.3d 1220 (9th Cir. 2005).

Belmontes v. Brown, 414 F.3d 1094 (9th Cir. 2005) (on remand from the United States Supreme Court for further consideration in light of Brown v. Payton, 125 S. Ct. 1432 (2005), the panel reaffirmed its previous opinion in a pre-AEDPA capital habeas case, affirming the district court’s denial of habeas relief as to the guilt phase of trial and reversing the denial of relief as to the penalty phase; distinguishing Payton on the ground that Payton held that under the standards of AEDPA, the state court was not objectively unreasonable in concluding that the use of California’s “factor (k), instructing the jury in the penalty phase to consider “any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime,” did not unconstitutionally prevent the jury from considering relevant post-crime mitigating evidence; also holding that here the factor (k) instruction resulted in a reasonable probability that the jury did not consider petitioner’s principal mitigating evidence), petition for cert. filed (Oct. 12, 2005) (No. 05-493).

Campbell v. Kincheloe, 829 F.2d 1453, 1464 (9th Cir. 1987) (holding Washington statute’s sentencing factor permitting consideration of “any relevant factors” was properly limited by state courts to mitigating factors), cert. denied, 488 U.S. 948 (1988).

Green v. Georgia, 442 U.S. 95 (1979) (holding exclusion of evidence at sentencing phase based on state hearsay rule is unconstitutional).

Grisby v. Blodgett, 130 F.3d 365 (9th Cir. 1997) (holding that Court need not determine whether exclusion of polygraph evidence was error, since there was no showing of substantial or injurious effect).

Any mitigating evidence that is not relevant to guilt or sentencing does not satisfy the Lockett rule and need not be admitted or considered in determining a sentence of death.

Skipper v. South Carolina, 476 U.S. 1 (1986) (rejecting state’s argument that evidence of future adaptability to prison life is irrelevant).

Glass v. Butler, 820 F.2d 112 (5th Cir. 1987) (holding trial court need not allow a defendant to introduce evidence not relevant to his or her character, prior record or the circumstances of offense; evidence of church’s opposition to death penalty not relevant).

Johnson v. Thigpen, 806 F.2d 1243, 1250–51 (5th Cir. 1986) (holding purported irrationality of Mississippi’s definition of capital murder, a description of the execution, and the issue of whether imposing a sentence of death is morally equivalent to killing not relevant to defendant’s character or offense), cert. denied, 480 U.S. 951 (1987).

Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986) (holding co-defendant’s life sentence not relevant to defendant’s character or offense), cert. denied, 481 U.S. 1042 (1987).

Martin v. Wainwright, 770 F.2d 918, 936 (11th Cir.) (holding failure to admit evidence on deterrent effect of death penalty does not violate Lockett because it does not help sentencer focus on unique characteristics of the defendant), modified, 781 F.2d 185 (11th Cir. 1985), and cert. denied, 479 U.S. 909 (1986).

People v. Ochoa, 19 Cal. 4th 353, 966 P.2d 442, 79 Cal. Rptr. 2d 408 (holding jury may not consider impact of death sentence on defendant’s family, but family members may offer testimony of the impact of an execution on them if by so doing they illuminate some positive quality of the defendant’s background or character), cert. denied, 528 U.S. 862 (1999).

In order to qualify for Lockett-Eddings status of admission and consideration at sentencing, mitigating evidence must be not only relevant but also related to defendant’s character, record, or circumstances of the offense. The Supreme Court, in Franklin v. Lynaugh, 487 U.S. 164 (1988), held that the jury’s residual doubt about a defendant’s guilt was not a proper Lockett-Eddings mitigating factor because such doubt is not of the defendant’s “character,” “record,” or “circumstances of the offense.”

Franklin v. Lynaugh, 487 U.S. 164 (1988) (holding no constitutional right to have residual doubt re: guilt of defendant considered as a mitigating factor at sentencing because not related to defendant’s character, record, or circumstances of offense).

Woratzeck v. Ricketts, 820 F.2d 1450, 1457 (9th Cir. 1987) (holding once guilt has been established beyond a reasonable doubt, a doubt about defendant’s guilt is not relevant and may be excluded from an evaluation of mitigating factors), vacated on other grounds, 486 U.S. 1051 (1988) (vacated for reconsideration in light of Maynard v. Cartwright).

In California v. Brown, 479 U.S. 538 (1987), the Supreme Court upheld an instruction that the jury “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” The Court reasoned that the instruction did not violate Lockett because it only barred feelings of sympathy arising from outside the evidence presented. Thus, to the extent that mitigating sympathy is unrelated to the evidence presented, it is constitutionally prohibited.

California v. Brown, 479 U.S. 538 (1987) (holding jury instruction that jurors “must not be swayed by mere sympathy” or by public sentiment does not violate Eighth Amendment requirement under Lockett that sentencer be allowed to consider any relevant mitigating evidence about the crime or the defendant).

In Saffle v. Parks, 494 U.S. 484 (1990), the Supreme Court stated that the decision in California v. Brown created a new rule because its reasoning was not dictated by Lockett or Eddings. Therefore, under Teague, California v. Brown is not retroactively applied to cases which became final before it was decided.

Saffle v. Parks, 494 U.S. 484 (1990) (stating Brown not retroactively applicable under Teague).

In Walton v. Arizona, 497 U.S. 639 (1990), the Supreme Court held that a state may require the defendant to bear the risk of nonpersuasion in the sentencing phase. So long as the method of allocating burdens of proof does not lessen the state’s burden to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him or her the burden of proving, by a preponderance of the evidence, mitigating circumstances “sufficiently substantial to call for leniency.” In Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990), the Ninth Circuit ruled that while the “sufficiently substantial to call for leniency” standard may be used in the weighing process under Walton, it may not be used to restrict the consideration of relevant mitigating evidence. Moreover, in Mills v. Maryland, 486 U.S. 367 (1988), the Court held that a state may not instruct the jury that it may consider only those mitigating circumstances which all jurors found unanimously. Such an instruction violates the requirement of Lockett that the sentencer may not be precluded from considering any relevant mitigating evidence.

Walton v. Arizona, 497 U.S. 639 (1990) (holding defendant may be given burden of proving mitigating circumstances “sufficiently substantial to call for leniency”).

McKoy v. North Carolina, 494 U.S. 433 (1990) (holding Mills violated where capital sentencing procedure precludes jurors from considering mitigating evidence unless all jurors agree that the evidence is a mitigating factor).

Mills v. Maryland, 486 U.S. 367 (1988) (vacating death sentence for Lockett violation where jurors may have believed they were precluded from considering any mitigating evidence unless they agreed unanimously on the existence of a particular circumstance).

Ninth Circuit:

Carriger v. Lewis, 971 F.2d 329 (9th Cir. 1992) (following Walton in rejecting claim that Arizona death penalty statute should require state to show absence of mitigating circumstances beyond reasonable doubt), cert. denied, 507 U.S. 992 (1993).

Richmond v. Lewis, 948 F.2d 1473 (9th Cir.1992) (following Walton in rejecting claim that death penalty statute illegitimately shifts burden of proof by requiring defendant to establish mitigating circumstances), rev’d on other grounds, 506 U.S. 40 (1992).

Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (holding Montana Supreme Court improperly used “sufficiently substantial to call for leniency” standard as a qualifier to exclude consideration of evidence which did not excuse defendant’s conduct; however, that standard may be used in the weighing process under Walton).

Miranda B. Strassmann, Note, Mills v. Maryland: The Supreme Court Guarantees the Consideration of Mitigating Circumstances Pursuant to Lockett v. Ohio, 38 Cath. U. L. Rev. 907 (1989) (reviewing Mills in light of precedent).

Victor L. Streib, Symposium: Death Penalty for Battered Women, 20 Fla. St. U. L. Rev. 163 (1992) (proposing battery be considered mitigating factor and in severe cases to exclude battered women from death penalty altogether).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

In Beard v. Banks, 542 U.S. 406 (2004), the Supreme Court stated that the decision in Mills v. Maryland (see § 4.8.4) created a new rule because its reasoning was not dictated by Lockett. The Court held that the Mills v. Maryland rule did not fall under either Teague exception and would not be retroactively applied to cases that became final before it was decided.

Beard v. Banks, 542 U.S. 406 (2004) (holding that Mills was not retroactively applicable under either Teague exception).