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301.2 Death Penalty: The Sentencing Determination -- Requirement Of Guided Discretion

    301.2.1 Death Sentence Must Not Be Discriminatory, Arbitrary Or Capricious
    301.2.2 Death Penalty: Guided Discretion -- Jury Must Not Have Too Much Discretion
    301.2.3 Death Penalty: Guided Discretion -- Jury Must Not Have Too Little Discretion
    301.2.4 Mandatory Death Improper For Murder By Life Prisoner
    301.2.5 Death Can Be Mandatory After Mitigation Is Considered
    301.2.6 Jury Must Accept Responsibility For Sentencing Decision
    301.2.7 Death Penalty: Jury Must Understand Sentencing Discretion

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    301.2.1    Death Sentence Must Not Be Discriminatory, Arbitrary Or Capricious

PRACTICE NOTE: The death penalty may not be imposed in a discriminatory, random, arbitrary, or capricious manner. (Stringer v. Black (1992) 503 US 222, 228 [112 SCt 1130; 117 LEd2d 367]; Sochor v. Florida (1992) 504 US 527, 532-36 [112 SCt 2114; 119 LEd2d 326]; McCleskey v. Kemp (1987) 481 US 279, 282 [107 SCt 1756; 95 LEd2d 262]; Gregg v. Georgia (1976) 428 US 153, 204 [96 SCt 2909; 49 LEd2d 859]; 1st, 8th & 14th Amendments; but see Buchanan v. Angelone (1998) 522 US 269, 275 [118 SCt 757; 139 LEd2d 702].)

    In Singleton v. Norris (8th Cir. 1997) 108 F3d 872, 874, Judge Heaney wrote at some length about his opposition to the death penalty. The first paragraph of this section summarizes his views:

    "Finally, although I am bound to uphold the law, I write separately to add my voice to those who oppose the death penalty as violative of the United States Constitution. My thirty years' experience on this court have compelled me to conclude that the imposition of the death penalty is arbitrary and capricious. At every stage, I believe the decision of who shall live and who shall die for his crime turns less on the nature of the offense and the incorrigibility of the offender and more on inappropriate and indefensible considerations: the political and personal inclinations of prosecutors; the defendant’s wealth, race, and intellect; the race and economic status of the victim; the quality of the defendant's counsel; and the resources allocated to defense lawyers. Put simply, this country's unprincipled death penalty selection process is inconsistent with fundamental principles of due process." (Id. at 874.)

    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 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, 619] [quoting Godfrey v. Georgia (1980) 446 US 420, 433 [100 SCt 1759; 64 LEd2d 398]]; Tison v. Arizona (1987) 481 US 137, 149 [107 SCt 1676; 95 LEd2d 127]; 8th & 14th Amendments.)

See Capital Punishment Handbook [1.1a. Constitutionality And Guided Discretion: General Principles And Authorities].

See also 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: In Furman v. Georgia (1972) 408 US 238, 239 [92 SCt 2726; 33 LEd2d 346] the Supreme Court held the death penalty statutes of Georgia and Texas (and indirectly virtually every capital sentencing statute in the country) unconstitutional because they permitted arbitrary and unguided imposition of the death sentence. The Furman decision prompted over thirty states to enact new capital statutes. Beginning with Gregg v. Georgia (1976) 428 US 153, 193-206 [96 SCt 2909; 49 LEd2d 859] the Court found a number of these statutes constitutional. According to the Court, a death sentence may not be imposed unless the sentencing authority finds the presence of at least one statutory aggravating factor and then weighs that factor against the evidence of mitigating factors adduced by the defendant. In general, a system for imposing the death penalty must focus on the circumstances of the crime and the character of the individual defendant and must provide "specific and detailed guidance" to the sentencing body. (See Jurek v. Texas (1976) 428 US 262, 268-276 [96 SCt 2950; 49 LEd2d 929] [upholding Texas statute limiting capital homicides to intentional and knowing murders committed in five specified situations, and creating sentencing procedure that requires jury in penalty phase of bifurcated trial to answer three questions affirmatively in order to sentence death, and also providing for expedited review by state court]; Proffitt v. Florida (1976) 428 US 242, 251 [96 SCt 2960; 49 LEd2d 913] [upholding Florida statute requiring sentencing judge, after bifurcated trial and advisory jury verdict, to weigh aggravating and mitigating circumstances when determining death sentence and set forth these findings in writing, and also providing for automatic review by state supreme court of all death sentences]; Gregg v. Georgia (1976) 428 US 153, 193-206 [96 SCt 2909; 49 LEd2d 859] [upholding Georgia statute requiring sentencing judge or jury, in bifurcated trial, to find at least one of ten statutory aggravating circumstances beyond a reasonable doubt when sentencing death, to consider any additional mitigating or aggravating evidence, and to specify aggravating circumstance(s) found, and also providing for direct review by state supreme court of appropriateness of all death sentences]; but see Callins v. Collins (1994) 510 US 1141, 1128-38 [114 SCt 1127; 127 LEd2d 435] (J. Blackmun, dissenting) [dissenting from the denial of certiorari and concluding that U.S. Supreme Court 8th Amendment law of guided discretion and individualized sentencing is contradictory, and death penalty as administered by Supreme Court is unconstitutional].)

RESEARCH NOTES:

See also Capital Punishment Handbook [1.1a. Constitutionality And Guided Discretion: General Principles And Authorities].

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

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PRACTICE NOTE: After the Furman v. Georgia (1972) 408 US 238, 239 [92 SCt 2726; 33 LEd2d 346] decision in 1972, several states chose one of two methods to amend their death penalty statutes to avoid the "arbitrary and capricious" pitfalls of the unguided discretion procedures invalidated by Furman. One method (now universally accepted by those states that have the death penalty) provided guidance to the sentencing body regarding the factors it should consider in imposing the death penalty. The Court upheld this approach in 1976 in Gregg v. Georgia (1976) 428 US 153, 193 [96 SCt 2909; 49 LEd2d 859]; Proffitt v. Florida (1976) 428 US 242, 254 [96 SCt 2960; 49 LEd2d 913]; Jurek v. Texas (1976) 428 US 262, 274 [96 SCt 2950; 49 LEd2d 929]. The other method removed all discretion by providing for mandatory death sentences upon conviction for certain offenses. On the same day that it decided Gregg, Proffitt, and Jurek, the Supreme Court decided Woodson v. North Carolina (1976) 428 US 280, 301 [96 SCt 2978; 49 LEd2d 944] and Roberts v. Louisiana (1976) 428 US 325, 333 [96 SCt 3001; 49 LEd2d 974] holding the mandatory method unconstitutional. The Court determined that the 8th Amendment proscription of cruel and unusual punishment requires heightened reliability in death cases and that this in turn requires that each defendant be evaluated individually to determine whether the death penalty is an appropriate punishment for the particular crime.

RESEARCH NOTES:

Philip E. Mackey, The Inutility of Mandatory Capital Punishment: An Historical Note, 54 B.U. L. REV. 32 (1974) [summarizing American nineteenth century opinions of mandatory death penalty, focusing on consequences of jury reluctance to sentence death].

John W. Poulos, The Supreme Court, Capital Punishment and the Substantive Criminal Law: The Rise and Fall of Mandatory Capital Punishment, 28 ARIZ. L. REV. 143 (1986) [reviewing history of capital jurisprudence up to Furman, and analyzing legislative response of mandatory statutes, and 1976 Supreme Court cases invalidating them].

See also Capital Punishment Handbook [1.1a. Constitutionality And Guided Discretion: General Principles And Authorities].

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

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PRACTICE NOTE: In Woodson v. North Carolina (1976) 428 US 280, 287 fn 9 [96 SCt 2978; 49 LEd2d 944] and Roberts v. Louisiana 1976, 428 US 325 [96 SCt 3001; 49 LE2d 974], the Court noted one potential exception to the ban on mandatory death sentences: defendants who committed murder while serving a previously imposed life sentence. In 1987, however, the Court decided Sumner v. Shuman (1987) 483 US 66, 77 [107 SCt 2716; 97 LEd2d 56] eliminating even this potential exception to mandatory death penalties. The Court held that an individualized sentencing determination is required in each capital case, and therefore a mandatory death penalty even for murders committed by inmates serving life sentences without possibility of parole was unconstitutional.

RESEARCH NOTES:

Peter G. Barber, Note, People v. Smith: Mandatory Death Laid to Rest, 49 ALB. L. REV. 926 (1985) [analyzing, prior to Sumner, New York Court of Appeals case striking down mandatory death penalty applied to life-term inmate convicted of murder, reviewing New York history of death penalty, and analyzing U.S. Supreme Court and New York Court of Appeals decisions regarding mandatory death penalty].

David S. Frankel, Note, The Constitutionality of the Mandatory Death Penalty for Life-Term Prisoners Who Murder, 55 N.Y.U. L. REV. 636 (1980) [analyzing, prior to Sumner, constitutionality of mandatory death penalty for life-term prisoners convicted of murder, focusing on Alabama case, Harris v. State].

Andrea Galbo, Note, Death After Life: The Future of New York’s Mandatory Death Penalty For Murders Committed by Life-Term Prisoners, 13 FORDHAM URB. L.J. 597 (1985) [analyzing, prior to Sumner, constitutionality of mandatory death penalty for life-term prisoners convicted of murder, focusing on New York statute and recent Court of Appeals decision, People v. Smith].

See also Capital Punishment Handbook [1.1a. Constitutionality And Guided Discretion: General Principles And Authorities].

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

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PRACTICE NOTE: See Walton v. Arizona (1990) 497 US 639, 647-56 [110 SCt 3047; 111 LEd2d 511] [upholding Arizona statute mandating that court "shall" impose death penalty if it finds one or more aggravating circumstances and finds mitigating circumstances insufficient for leniency, because statute does not preclude consideration of mitigation, nor create presumption of death]; Blystone v. Pennsylvania (1990) 494 US 299, 305-09 [110 SCt 1078; 108 LEd2d 255] [upholding Pennsylvania statute mandating death sentence if jury finds at least one aggravating circumstance and no mitigating circumstances or finds aggravating circumstances outweigh mitigating circumstances, because consideration of mitigation satisfies constitutional individualized sentencing requirement]; Boyde v. California (1990) 494 US 370, 372-386 [110 SCt 1190; 108 LEd2d 316] [upholding, based on Blystone, now changed California jury instruction mandating that jury "shall" impose death sentence if it finds aggravating circumstances outweigh mitigating].

RESEARCH NOTES:

Daniel R. Harris, Note, Capital Sentencing After Walton v. Arizona: A Retreat from the "Death is Different" Doctrine, 40 AM. U. L. REV. 1389, 1394-1403 (1991) [summarizing Furman and its progeny, and proposing that Walton represents a departure from that precedent].

See also Capital Punishment Handbook [1.1a. Constitutionality And Guided Discretion: General Principles And Authorities].

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

See also Capital Punishment Handbook [4.9.2a. Mandatory Presumption: General Principles And Authorities].

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    301.2.6    Jury Must Accept Responsibility For Sentencing Decision

PRACTICE NOTE:  See Caldwell v. Mississippi (1985) 472 US 320, 328-34 [105 SCt 2633; 86 LEd2d 231] [reliability of verdict undermined when juror's sense of personal responsibility is compromised]; see also Antwine v. Delo (8th Cir. 1995) 54 F3d 1257; Mann v. Dugger (11th Cir. 1988) 844 F2d 1446.

RESEARCH NOTES:

Eisenberg, et. al., Jury Responsibility In Capital Sentencing: An Empirical Study, 44 Buff. L.Rev 339 (1996).

See Capital Punishment Handbook 4.4.6 [Diminished Jury Responsibility].

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    301.2.7    Death Penalty: Jury Must Understand Sentencing Discretion

PRACTICE NOTE:  Buchanan v. Angelone (1998) 522 US 269, _____ [118 SCt 757; 139 LEd2d 702] suggested that so long as the death qualification process rationally narrows those eligible for the death penalty, the sentencing jury may be given wide discretion. However, jury confusion over exercise of sentencing discretion as arbitrary deprivation of life in violation of due process. (See Murtishaw v. Woodford (9th Cir. 2001) 255 F3d 926, 970.)