Amicus Curiae Brief — Blystone v. Pennsylvania

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

SCOTT WAYNE BLYSTONE, Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA, Respondent.

On Petition For Writ Of Certiorari To The

Supreme Court of the Commonwealth of Pennsylvania

BRIEF AMICI CURIAE

State of California, joined by the

States of Arizona, Connecticut, Idaho, Illinois,

Indiana, Montana, New Hampshire, Nevada, North

Carolina, South Carolina, Tennessee, Utah, Wyoming

JOHN K. VAN DE KAMP

At General

of the te of California

Deputy Attorney General

[Attorney of Record]

Atto General

P.O. Box 94425

Sacramento, CA 94244-2550

(916) 324-5251

sie

iii

TABLE OF AUTHORITIES = my:

Page

CASES CASES

Purman v.Georgia,

Adamson v. Ricketts im

865 F.2d 1011 (9th Cir. 1988) 6,10,21 | 498 U-S- 238 (1972) "

Grandison v. State

Barclay v. Florida, 305 Md. 685, 506 A.2d 580,

463 U.S. 939, 961-962 (1983) 26,30,31 616 (Md. 1986) 25

Bonin v. acy yr tne den., Gregg v. Georgia, |

California v. Brown,

Jurek v. Texas

479 U.S. 538 (1987) 14,16,17,19 428 2.2. 262 (1976) passim

California v. Ramos, Lowenf pole.

ll v. Kincheloe, 555 (1988) | 7

829 F.2d 1453, 1466 (9th Cir. 1987) 27 McCleskey v. Kemp,

Commonwealth v. Blystone, 481 U.S. 08.279, 3 (1987) 14

549 A.ad 61, 92 (Pa. 1988) 9 | McGautha v. California,

402 U.S. 183 (1971) | | 14

Commonwealth v. Cross,

496 A.2d 1144, 1151 (Pa. 1985) 13 McKenzie v. Risley

842 F.2d 1525, 1543 (9th Cir. 1988) 28

Penry v. Lynaugh

U.S. _, 57 U.S.L.W.

Commnaiseaten Vv. Maxwell, '

447 A.2d 1309, 1317-1318 (Pa. 1984) 9

Commonwealth v. Peterkin, 5) 11,19,33

513 A.2d 3673, 387-388 (Pa. 1986) 13 | 4958 (1989) 7?

People v. Adcox

Cooper v. State, 47 Cal.3d 207, 270-271; 253 Cal.Rptr.

336 S.2d 1133, 1142 (Fla. 1976) 30 55; 763 P.2d 906 (Cal. 1988) 11

Pranklin v. Lynaugh,

U.S. , 108 &.Ct. 2320 passim

TABLE OF AUTBORITIES

CASES

te ee Ghent,

43 -3d 739,776; 239 Cal.Rptr.

82; 739 P.2d 1250 (Cal. 1987)

e v. Hendricks

Peopl ’

44 Cal.3d 635, 654; 244 Cal.Rptr.

181; 749 P.2d 836 (Cal. 1988)

People v. Mon ’

122 Ill. 517, 98 Ill.Dec. 353,

494 N.E.2d 475, 482 (Ill. 1986)

People v. Tichnell, 306 Md. 428,

509 A.2d 1179, 1199 (Md. 1986)

Pulley v. Harris,

465 U.S. 45

Proffitt wv. Florida,

428 U.S. 242 (1976)

Roberts v.. Louisiana,

428 U.S. 325, 362 fn. 8 (1976)

State v. Beaty, |

158 Ariz. 232, 762 P.2d 519,

533-534 (Ariz. 1988)

State v. Dicks,

615 S.W.2d 126, 131 (Tenn. 1981)

State v. Gretzler,

135 Ariz. 42, 659 P.2d 1,

13-14 (1983)

1,2,16,30

30,32

10,21

cee ene

CASES

State v. Jeffries,

105 Wash.2d 398, 717 P.2d

722, 737 (Wash: 1986)

State v. Jenkins,

15 Ohio St. 164, 473 N.E.2d

264, 280-281 (Ohio 1984)

State v. Price, 195 N.J.Super 285,

478 A.2d 1249, 1254-1255 (N.J.

Super L. 1984)

State v. Ramseur,

106 N.J. 123, 524 A.2d 188, 287

fn.81 (N.J. 1987)

Turner v. wy &

476 U.S. 28 (1986)

Williams v. State,

386 S.2d 538, 543 (Fla. 1980)

Woodson v. North Carolina,

428 U.S. 280 - (1976)

Zant v. St ‘

462 U.S. 862 (1983)

passim

29, 34

CONSTITUTIONAL PROVISIONS

42 Pa. Cons. Stat. § 9711

42 Pa. Cons. Stat. § 9711(c)(iv)

Eighth Amendment

QUESTION PRESENTED

May a death penalty statute, which

narrows the class of death penalty-

eligible offenders and which provides

for individualized consideration of all

mitigating evidence proffered by an

offender including evidence of the

circumstances of the offense, guide and

channel sentencer discretion by

requiring that the death penalty be

imposed if the aggravating circumstances

outweigh the mitigating circumstances?

Se de aiieacmieediiadiel

Amici curiae are states which

adopted death penalty statutes in

response to this Court’s decisions in

Purman v. Georgia, 408 U.S. 238 (1972);

Gregg v. Georgia, 428 U.S. 153 (1976);

Proffitt v. Florida, 428 U.S. 242

(1976); and Jurek v. Texas, 428 U.S. 262

(1976). Those cases held that the Cruel

and Unusual Punishment Clause of the

Eighth Amendment of the United States

Constitution requires that death penalty

statutes suitably direct and limit the

discretion of sentencers in death

penalty cases 18 order “to minimise the

risk of wholly arbitrary and eageteters

action.” (Gregg v. Georgia, supra, at

189.) Pursuant to these decisions, we

enacted capital punishment laws which

narrowed the class of death-penalty

eligible offenders and which provided

that our sentencers should consider all

mitigating evidence as part of their

individualized consideration of the

defendants’ crime and circumstances.

Having met our Eighth

Amendment obligations, we relied on this

Court's decisions to adopt various

procedures for channeling and guiding

sentencer discretion in determining

penalty. These procedures included

permitting “unbridled discretion’ (Gregg

v. Georgia, supra); “weighing” of

aggravating and mitigating circumstances

(Proffitt v. Florida, supra); and

responding to specific questions about

the defendant (Jurek v. Texas, supra).

Yet, our statutes have been challenged

because they channel and guide the

exercise of sentencer discretion. (See,

—O<@&«xX——., =—"~- “ "= ®*

: 3

e.g., Hamilton v. California, cert.

den., _.U.S.__, 109 S.Ct. 879, 880-882

(Marshall, J. dis.); Bonin v.

California, cert. den., _U.8.__, 57

U.S.L.W. 3619 (Brennan, Marshall, J.J.

dis.).)¥

In this case, petitioner is

attacking Pennsylvania's death penalty

statute which requires imposition of the

death penalty if aggravating

circumstances outweigh mitigating

circumstances. He argues that this

statute creates an unconstitutional so-

called “mandatory” death penalty which

1. This Court has since granted

tion for writ of certiorari in

‘

compels the sentencer to impose that

punishment even if the sentencer

believes that the punishment is

inappropriate. We believe that

petitioner's argument erroneously

creates a third requirement < death

penalty laws -- ‘unbridled discretion’

for the sentencer in the final

determination of penalty. Petitioner's

argument is contradicted by the

precedents of this Court which we relied

upon in drafting our death penalty

statutes. We believe that if this

argument is adopted, it will provide

authority for further federal review of

other state statutes that guide and

channel sentencer discretion in order to

minimize arbitrary and capricious

action.

Indeed, this argument is yet

another example of how an isolated

phrase or limited portion of this

Court's prior opinions concerning other

states’ statutes can be taken out of

context and distorted into an attack on

other dissimilar statutes. In this

case, petitioner is misusing this

Court's line of cases beginning with

Woodson v. North Carolina, 428 U.S. 280

(1976) to argue that a mandatory death

penalty is unconstitutional even when

the statutory scheme provides for full

consideration of all mitigating

circumstances. Accepting petitioner's

argument will endanger matty statutes

that were adopted in good faith reliance

on this Court’s assurance that there is

no “right way for a State to set up its

capital sentencing scheme.* (Spesiano

v. Florida, 468 U.S. 447, 464 (1984).)

SUMMARY OF ARGUMENT

Pennsylvania's death penalty

statute requires the senten>ser to impose

the ageath penalty if it finds that the

aggravating circumstances outweigh the

mitigating circumstances. Petitioner

argues that this provision of

Pennsylvania's law constitutes an

unconstitutional so-called ‘mandatory’

death penalty which allegedly deprives

murderers of an individualised

consideration of their offenses and

circumstances.

Amici curiae submit that

petitioner's argument mistakenly extends

this Court's decisions on capital

punishment. This Court has held that

the Eighth Amendment requires that a

death penalty statute narrow the class

of death-penalty eligible offenders and

that the sentencer make an

individualized determination of the

proper sentence by considering all

mitigating evidence. However, contrary

to petitioner's argument, this Court’s

cases do not require that the sentencer

have “unbridled discretion” in finally

determining the appropriate penalty.

Petitioner’s position, by requiring

‘unbridled discretion,” improperly

intrudes into Pennsylvania's scheme for

channeling and guiding sentencer

discretion that is part of

Pennsylvania's “effort to achieve a more

rational and equitable administration of

the death penalty.” . (Franklin v.

Lymaugh, _U.S.__, 108 S.Ct. 2320, 2331

(1988) (White, J. plur.).)

Amici submit that no one

system for imposing the death penalty

is, or should be, preferred over any

other valid system. ‘“[(Ejach distinct

system must be examined on an individual

basis.” (Gregg v. Georgia, supra, 428

U.S. at 195.) Amici urge this Court to

uphold Pennsylvania’s statute and the

instructions given in petitioner's case

not because they are constitutionally

compelled, but solely because they are

not constitutionally prohibited.

Pennsylvania's death penalty

statute narrows the class of death

penalty eligible offenders and provides

for consideration of all mitigating

evidence, including evidence relating to

the circumstances of the offense. (42

Pa. Cons. Stat. § 9711; Commonwealth v.

Blystone, 549 A.2d 81, 92 (Pa. 1988);

see Commonwealth v. Maxwell, 447 A.2d

1309, 1317-1318 (Pa. 1984).)

Pennsylvania's law requires the jury to

impose the death sentence if it finds

the existence of one statutory

aggravating factor and no mitigating

factors or if it finds that the

aggravating factors outweigh the

mitigating factors. (42 Pa. Cons. Stat.

§ 9711(c)(iv).) Petitioner argues that

this provision of the Pennsylvania law

is unconstitutional because it caggees a

supposed “mandatory death penalty” that

precludes individualized sentencing

based on the circumstances of the

offense and the offender.

Amici curiae submit that this

argument is an unwarranted extension of

this Court’s jucisprudence. We contend

that once “ state establishes a rational

scheme for the discretionary

consideration of eggrevating and

mitigating factors, that further federal

review is unnecessary. However,

petitioner's argument would engraft a

litative

modifiers to some of the mi ting

rejected in other courts. (See, e.g.

People v. Ghent, 43 Cal.3d 739, 776; 239

Cal.Rptr. 82; 739 P.2d 1250 (Cal. 1987);

People v. Adcox, 47 Cal.3d 207, 270-271;

253 Cal.Rptr. 55; 763 P.2d 906 (Cal.

1988).)

As recently as 1988, this

Court held that the Constitution

"requires no more” than that death

penalty statutes “narrow{ } the class of

death-eligible murderers and then at the

sentencing phase allow{ ] for the

consideration of mitigating

circumstances and the exercise of

discretion.“ (Lowenfield v. Phelps,

__U.S.__, 108 §.Ct. 546, 555 (1988).)

However, this Court has never indicated

that the states must guide the exercise

of discretion in a cextain way or, as

petitioner apparently contends, permit

that exercise of discretion to be

unbridled. ‘Much in our cases suggests

(Franklin v.

Lynaugh, U.S.._, 108 &.Ct. 2320, 2331

just the opposite.’

(1988) (White, J. plur.).)

Initially, amici note that the

Pennsylvania statute is not the type of

“mandatory” statute first condemned by

this Court in Woodson v. North Carolina,

supra. Unlike the “mandatory” statutes

invalidated by this Court,

Pennsylvania's statute permits

consideration of all mitigating

evidence. (Commonwealth v. Cross, 496

A.2d 1144, 1151 (Pa. 1985).)

Purthermore, unlike the true “mandatory”

statutee this Court denounced in

Woodson, Pennsylvania's law is conistent

with the Eighth Amendment requirement

that the death penalty be imposed in a

rational and non-arbitrary fashion.

(Commonwealth 7. Peterkin, 513 A.2d

3673, 387-388 (Pa. 1986).)

Prior to Furman v. Georgia,

408 U.S. 238 (1972), capital sentencers

had unbridled discretion in determining

penalty. (McGautha v. California, 402

U.S. 183 {1971).) However, in Furman,

this Court declared such total

discretion unconstitutional because it

lead to irrational and. arbitrary

(Gregg v. Georgia, 428 U.S.

153, 188 (1976) citing Furman v.

results.

Georgia, supra.) Since Furman, this

court has “identified a constitutionally

permissible range of discretion in

imposing the death penalty.” (McCleskey

v. Kemp, 481 U.S. 279, 305 (1987).)

That permissible range falls between “a

required threshold below which the death

penalty cannot be imposed” and the

requirement that the sentencer consider

all mitigating evidence. (Id. at 305-

306; see also California v. Brown, 479

U.S. 538, 541 (1987).)

This Court has merely

indicated that it will tolerate

“unbridled discretion” once a sentencer

has determined that a murderer has

crossed the threshold df death-penalty

eligibility and has considered all

mitigating evidence. “(Tjhis Court has

never held that jury discretion must be

unlimited or unguided; we have never

suggested that jury consideration of

mitigating evidence must be undirected

or unfocused; we have never concluded

that States cannot channel jury

discretion in capital sentencing in an

effort to achieve a more rational and

equitable administration of the death

penalty.” (Franklin v. Lynaugh, supra,

108 S.Ct. 2331) (White J. plur.).)

It is understandable why

states choose to canalize the discretion

of sentencers in considering the

circumstances and determining the final

penalty. This Court invalidated death

penalty statutes in 1972 because the

sentencing procedures then in effect

created “a substantial risk that [the

death penalty] would be inflicted in an

arbitrary and capricious manner.”

(Gregg v. Georgia, supra, 428 U.S. at

188 citing Furman v. Georgia, supra.)

Channeling a sentencer’s discretion can

serve the “useful purpose” of precluding

consideration of extraneous emotional

factors unrelated to the evidence. (See

California v. Brown, supra, 479 U.S. at

543.) Furthermore, states can ensure

that the death penalty will be imposed

“with regularity,” rather than

| (Proffitt v.

“freakishly or rarely.”

Plorida, 428 U.S. 242, 260 (1976)

(White, J. conc.); Jurek v. Texas, 428

U.S. 262, 278-279 (1976) (White, J.

conc.).) The channeling of sentencer

discretion can “minimize the risk of

wholly arbitrary and capricious action.”

(Gregg v. Georgia, supra, at 189.) Such

schemes promote the rational and

predictable administration of death

penalty laws. (California v. Brown,

supra, 479 U.S. at 541.) Standards for

the consideration of all evidence

provide a “meaningful basis for

distinguishing the few cases in which

[the death penalty] is imposed.from the

many cases in which it is not. (Purman

v. Georgia, supra, 408 U.S. at 238

(White, J. conc.).) They also foster

reliability and further judicial review.

(California v. Brown, supra, 479 U.S. at

543.)

These schemes do not sacrifice

the requirement that death sentencing be

individualized because they do not

preclude the admission and consideration

of any relevant mitigating evidence. As

a “practical matter” sentencers will be

aware of the consequences of their

weighing of the aggravating and

mitigating. (Franklin v. Lynaugh,

supra, 108 S.Ct. at 2331 fn. 12 (White,

J. plur.).) The “weighing” process does

not eliminate subjectivity, but it does

set “clear and objective” standards to

(Gregg v.

Georgia, supra, 428 U.S. at 189, 198.)

minimize discrimination.

Finally, these “weighing”

statutes resolve any “tension” that may

exist between the Eighth Amendment

requirements that the death penalty be

imposed in a rational manner and that

the sentencer consider all potential

mitigating evidence. (Franklin v.

Lynaugh, supra, 108 S.Ct. at 2331

(White, J., plur.) citing California v.

Brown, supra, 479 U.S. at 544 (O'Connor,

J., conc.).) Since these statutes do

not preclude consideration of any

mitigating evidence, they protect the

Eighth Amendment interest in ensuring

that the death penalty is “appropriate”

in a particular case. (Woodson v. North

Carolina, supra, 428 U.S. at 305

(Stewart, J., plur.) Yet, hy requiring

that the death penalty then be imposed

if the aggravating circunstances :

outweigh mitigating circumstances, these

statutes also promote the Eighth

Amendment requirement that the capital

sentencing decision be a “reasoned moral

response” to the evidence. (Penry v.

Lynaugh, __U.S.__, 57 U.S.L.W. 4958,

4965 (1989).)

Taking their cue from this

Court, many states have chosen to follow

the approach of channeling and guiding

the sentencer’s consideration of

aggravating and mitigating

circumstances.” For instance, Arizona

law requires imposition of the death

penalty if the sentencer finds one

aggravating factor and no mitigating

factors substantial enough to call for

leniency. The Arizona courts have

interpreted this formula as requiring

the imposition: of the death sentence: if |

aggravating circumstances qualitatively

outweigh mitigating circumstances.

3. A complete list of all state

statutes with statutory schemes similar

to Pennsylvania’s is set forth in

Pennsylvania's brief on the merits.

(State v. Gretzler, 135 Ariz. 42, 659

P.2d 1, 13-14 (Ariz. 1983).) This

requirement means that “a defendant will

stand the same chance of receiving the

death penalty from a judge [the Arizona

sentencer] who does not philosophically

believe in the death penalty as from a

judge who does.” (State v. Beaty, 158

Ariz. 519, 762 P.2d 19, 534 (Ariz.

1988).) Thus, the death penalty “is

then reserved for those who are above

the norm of first-degree murderers or

whose crimes are above the norm of first

degree murders, as the legislature |

intended.“ (Ibid.)¥

4. The Arizona death penalty

formula was declared unconstitutional by

the Ninth Circuit in Adamson v..

Ricketts, 865 F.2d 1011 (9th Cir. 1988).

Arizona’s petition for writ of

certiorari is currently pending before

90-1553), Ricketts v. Adamson, (No.

ee OP a ee

California requires that the

death penalty “shall” be imposed if

aggravating circumstances outweigh

mitigating circumstances. These

circumstances are based on the evidence

presented in the guilt and penalty

phases. The determination is not a

mechanistic or numerical process.

(People v. Brown, 40 Cal.3d 512, 541;

220 Cal .Rptr. 637, 709 P.2d 440 (Cal.

1985).) However, the determination of

appropriateness is inherent in the |

“weighing” process. To instruct penalty

phase jurors. that they may ignore the

outcome of the “weighing. process” “comes

perilously close to violating the

mandate of [Furman] that the jurors must

be given specified standards or

guidelines within which to focus their

discretion . . . [and] would invite

arbitrary decisions based on improper or

irrelevant sentencing considerations .

Fi ( People vy. Mendricks, 44 Cal.3d

635, 654; 244 Cal.Rptr. 181; 749 P.2d

836 (Cal. 1988). )*7

Similarly, New Jersey mandates

a death penalty if the aggravating

factors outweigh mitigating factors.

However, such a law is “hardly the

automatic imposition of death found

unconstitutional in [Woodson]. .. .”"

since New Jersey Law permits

consideration of all mitigating factors.

(State v. Price, 195 N.J.Super 285, 478

A.2d 1249, 1254-1255 (N.J. Super L.

1984).) The New Jersey courts have

5. For instance, jurors would not

be able to consider residual or

lingering doubt about guilt as a

mitigating factor. (Franklin v.

Lynaugh, supra, 108 S.Ct. at 2326-2328,

2334-2335 (O'Connor, J. conc.).)

noted that this Court has never required

a so-called “mercy” provision. (Ibid.)

New Jersey has rejected the argument

that a jury should also decide

explicitly that death is the

“appropriate” penalty since the

vagueness of that term would

“underminfe] the principle, also

constitutionally mandated, that the

death sentence be meted out in a manner

that is not arbitrary or capricious.”

(State v. Ramseur, 106 N.J. 123, 524

A.2d 188, 287 fn.81 (N.J. 1987).)

Illinois requires imposition

of the death penalty if there are.no

mitigating factors sufficient to

preclude that punishment. This finding

“is synonymous with a finding that death

is the appropriate penalty.” (People v.

Montgomery, 122 Ill. 517, 98 I1l.Dec.

353, 494 N.E.2d 475, 482 (Ill. 1986).)

Maryland courts have also

rejected the argument that juries should

be- instructed that they may impose a

life sentence without regard to the

relative weights of aggravating and

mitigating factors. Otherwise, “there

would be no principled or rational way

to differentiate the few cases in which

the death penalty is justified tom the

many in which it is not.” (People v.

Tichnell, 306 Md. 428, 509 A.2d 1179,

1199 (Md. 1986).) Such an instruction

would permit “unguided discretion.”

(Grandison v. State, 305 Md. 685, 506

A.2d 580, 616 (Md. 1986).)

Ohio requires the jury to

ecommend the death penalty to the court

f aggravating factors outweigh

miticating factors beyond a reasonable

doubt. Since Ohio law permits the

introduction of any relevant mitigating

factors, Ohio courts have found that

this system comports with the Eighth

Amendment.

(State v. Jenkins, 15 Ohio

1984) discussing Barclay v. Florida,

supra, 463 U.S. at 958 (Stevens, J.J.

conc.).)

Tennessee has upheld its

analogous death penalty law since its

statute requires the sentencer to

consider all mitigating factors. (State

wv. Dicks, 615 S.W.2d° 126, 131 (Tenn.

1981).)

Finally, the State of

Washington requires that the death

penalty be imposed if “there are not

sufficient mitigating circumstances to

imposed in a just manner.”

merit leniency. ...” (State v.

Jeffries, 105 Wash.2d 398, 717 P.2d 722,

737 (Wash. 1986).) Washington has

rejected the argument that this statute

imposes 1 “mandatory” death penaity in

violation of Woodson, since the statute

allows for jury discretion in

considering all mitigating factors.

eee. once the jury has exercised

that discretion, “[i]t is only at this

point that the death penalty becomes

mandatory. ... The result is that the

penalty of death is not arbitrarily or

capriciously imposed, but instead is

(Id. at 737-

738; see also Campbell v. Kincheloe, 829

F.2d 1453, 1466 (9th Cir. 1987).)

Montana’‘s law is similar to

Washington's in requiring a death

penalty if there are no mitigating

circumstances sufficiently substantial

to call for leniency. (People v.

Coleman, 605 P.2d 1000, 1016.) However,

Montana has held that such a scheme is

not an unconstitutional mandatory

statute since Montana‘s statute requires

its sentencers to consider all facts

existing in mitigation. (Id. at 1017;