THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 17 - CHAPTER 303
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303.13 Jury Must Not Consider Deterrence

    303.13.1 Death Penalty: Jury May Not Consider Deterrence Or Monetary Cost

    THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 17 - CHAPTER 303

303.13.1    Death Penalty: Jury May Not Consider Deterrence Or Monetary Cost

RATIONALE: Because aggravation must be limited to the statutorily prescribed factors, it is improper for the jury to consider deterrence of monetary costs as a basis for imposing a death sentence. Without specific limiting instruction the jury may not understand this rule.

POINTS AND AUTHORITIES: In People v. Thompson (CA 1988) 45 C3d 86, 132 [246 CR 245], the court held that it would not be error to give an instruction "to forestall consideration of deterrence or cost ..." (See also Rogers v. Director (TX 1994) 864 FSupp 584, 593 [argument concerning deterrent effect of death penalty is not material to sentence]; but see State v. Bigbee (TX 1994) 885 SW2d 797, 812 [prosecution should avoid general deterrence arguments, but trial court did not err in refusing to instruct the jury not to consider the deterrent effect of the death penalty].) Accordingly, such an instruction may be appropriate upon request. (See People v. Bacigalupo (CA 1991) 1 C4th 103, 146 [2 CR2d 335].) The sample instruction below is the one which was requested and refused in Bacigalupo.

    Consideration of cost or deterrence would violate the 8th and 14th Amendments by allowing the jury to consider nonstatutory aggravation. (See Clemons v. Mississippi (1990) 494 US 738, 747 [110 SCt 1441; 108 LEd2d 725]; People v. Williams (CA 1988) 45 C3d 1268, 1324 [248 CR 834].)

CAVEAT: In People v. Marshall (CA 1996) 13 C4th 799, 859 [55 CR2d 347], the defendant argued that the prosecutor's suggestion that the jury should refrain from considering the deterrent or nondeterrent effect of the death penalty led the jury to entertain a limited, mechanical view of its function, in contravention of the 8th Amendment. Although the California Supreme Court rejected this argument, any potential federal issue will likely be waived if the defendant requests such an instruction.

    In deciding whether death or life imprisonment without the possibility of parole is the appropriate sentence, you must not consider, for any reason whatsoever, the deterrent or nondeterrent effect of the death penalty or the monetary cost to the State of execution or maintaining a prisoner for life.

[Source: Adapted from People v. Bacigalupo (CA 1991) 1 C4th 103, 146 [2 CR2d 335].]

    You may not consider deterrence or monetary costs as a reason for returning a sentence of death.

[Source: NCJIC.]