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301.1 The Death Eligibility Determination: Requirement Of Rational Narrowing

    301.1.1 Death Eligibility: Rational Narrowing Is Constitutionally Required
    301.1.2 Death Penalty: Narrowing Must Be Rational
    301.1.3 Death Penalty: Narrowing Determination Must Be Made By Jury And Comport With 5th, 6th And 14th Amendments
    301.1.4 Aggravating Factor Must Not Be So Vague That It Could Apply To Every Death-Eligible Murder
    301.1.5 Challenge To Overly Broad Death Eligibility Scheme
    301.1.6 Death Penalty: Specific Aggravating Factors
    301.1.7 Death Penalty For Crimes Other Than Murder

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PRACTICE NOTE: The death eligibility determination (i.e., the special circumstance determination in California) must rationally narrow the class of individuals who are death eligible for valid penological reason[s]. (Spaziano v. Florida (1984) 468 US 447, 460, n7 [104 SCt 3154; 82 LEd2d 340]; see also Tison v. Arizona (1987) 481 US 137, 149 [107 SCt 1676; 95 LEd2d 127].) This principle requires a State to construe death eligibility criteria to provide a "principled way to distinguish [a] case, in which the death penalty was imposed, from the many cases in which it was not." (Lewis v. Jeffers (1990) 497 US 764, 775 [110 SCt 3092; 111 LEd2d 606] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]]; 8th & 14th Amendments.)

    In some states (e.g., California, Connecticut, New York), the narrowing is accomplished by requiring a jury finding of an "aggravating" or "special" circumstance at the guilt trials. In other states, the death eligibility determination is made at the sentencing hearing. (E.g., Arizona.)

See Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

See also Capital Punishment Handbook [1.7a. Requisite Mental State For Imposition Of Death Sentence: General Principles And Authorities].

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PRACTICE NOTE: See Capital Punishment Handbook [4.7. Aggravating Circumstances].

See Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

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PRACTICE NOTE: The United States Supreme Court has held that there is no right to jury determination of sentence in a capital trial. (See Spaziano v. Florida (1984) 468 US 447, 459 [104 SCt 3154; 82 LEd2d 340]; Walton v. Arizona (1990) 497 US 639, 647 [110 SCt 3047; 111 LEd2d 511].)

    However, dicta in Jones v. U.S. (1999) 526 US 227 [119 SCt 1215; 143 LEd2d 311] made it clear that full constitutional protections under the 5th, 6th and 14th Amendments apply to any factual determination upon which death eligibility is predicated. In Jones, the court was careful to explain that its decisions in Spaziano, Hildwin v. Florida (1989) 490 US 638, 639-40 [109 SCt 2055; 104 LEd2d 728], and Walton v. Arizona (1990) 497 US 639, 648 [110 SCt 3047; 111 LEd2d 511] involved factors related to a "choice between a greater and lesser penalty..." (468 US at 251-52.) Under the rationale of Jones, the determination of death eligibility must be made by the jury because it is "a process of raising the ceiling of the sentencing range available." (Ibid.)

    However, Apprendi v. New Jersey (2000) 530 US 466 [120 SCt 2348; 147 LEd2d 435] and Jones v. U.S. (1999) 526 US 227 [119 SCt 1215; 143 LEd2d 311] make it clear that full constitutional protections under the 5th, 6th and 14th Amendments apply to any factual determination upon which death eligibility is predicated. Walton, Spaziano and Hildwin involved factors related to a "choice between a greater and lesser penalty..." (See Jones, 119 SCt at 1228.) Under Jones and Apprendi, the determination of death eligibility must be made by the jury because it is "a process of raising the ceiling of the sentencing range available." (Jones, 119 SCt at 1228; see also Apprendi, 120 SCt at 2363.)

RESEARCH NOTES:

See Welsh S. White, Factfinding and the Death Penalty: The Scope of a Capital Defendant's Right to Jury Trial, 65 NOTRE DAME L. REV. 1 (1989) [analyzing capital defendant's right to jury at both guilt and sentencing phases].

See also Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

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PRACTICE NOTE: See Capital Punishment Handbook [4.7.2.1. Applies To Subclass Only; Not Vague].

    See also Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

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    301.1.5    Challenge To Overly Broad Death Eligibility Scheme

PRACTICE NOTE: A death eligibility scheme that fails to meaningfully narrow the class of individuals who may receive a sentence of death violates the 8th Amendment. Hence, in those states where the narrowing is inadequate the issue may be raised.

    For example, in Tuilaepa v. California (1994) 512 US 967 [114 SCt 2630; 129 LEd2d 750] the United States Supreme Court upheld one component of California's death penalty scheme, but explicitly recognized that the constitutional adequacy of California's death penalty eligibility provisions were not (and, implicitly, had not been) before the Supreme Court. (Id. at 975 ["Petitioners do not argue that the special circumstances found in their cases were insufficient, so we do not address that part of California's scheme..."]; Id. at 981 (Stevens, J., concurring) [emphasizing that the Supreme Court's holding rested on the unchallenged, unaddressed assumption that the death penalty eligibility provisions were constitutional].) In dissent, Justice Blackmun emphasized that the Court had never given the California system "a clean bill of health," and added:

    [T]he Court's opinion says nothing about the constitutional adequacy of California's eligibility process, which subjects a defendant to the death penalty if he is convicted of first-degree murder and the jury finds the existence of one "special circumstance." By creating nearly 20 such special circumstances, California creates an extraordinary large death pool. Because petitioners mount no challenge to these circumstances, the Court is not called on to determine that they collectively perform sufficient, meaningful narrowing. (Id. at 994.)

    Hence, a "narrowing" scheme like California's is suspect because it is so broad that it actually achieves less narrowing than took place prior to Furman v. Georgia (1972) 408 US 238 [92 SCt 2726; 33 LEd2d 346]. (See "The California Death Penalty Scheme: Requiem for Furman?," Steven F. Shatz and Nina Rivkind, 72 N.Y.U. Law Rev. 1283 (1997).) Both on its face and in practice, the California scheme is the broadest in the nation. Hence, the constitutionality of the California scheme should be challenged at trial and on appeal.

MOTION AVAILABLE: Click here. [Motion Bank # M-3007]. Included with both the motion and the brief are declarations from Professor Schatz as to the statistical overbreadth of the California special circumstances (Exhibit A). 

See also Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

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PRACTICE NOTE: See Capital Punishment Handbook [4.7.3. Specific Aggravating Circumstances].

See Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].

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PRACTICE NOTE: See Capital Punishment Handbook [1.3. Death Penalty For Crimes Other Than Murder].

See Capital Punishment Handbook [1.2a. Mandatory Death Sentences: General Principles And Authorities].