# Amicus Curiae Brief — Blystone v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0544%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 494 U.S. 299 ## Text F | | FILE! 0 ex 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 ii 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 iv 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) 11 23 24 36 1,2,16,30 30,32 10,21 26 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) 27 26 23 24 34 31 passim 29, 34 vi CONSTITUTIONAL PROVISIONS 42 Pa. Cons. Stat. § 9711 42 Pa. Cons. Stat. § 9711(c)(iv) Eighth Amendment 10 i 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 2 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. 5 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 6 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 7 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.).) 8 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 10 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 E. | f iF i -) _ n mH 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).) 12 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.).) 13 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 14 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).) a 15 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 16 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) 17 (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.) 18 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 19 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. 20 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. 21 (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 22 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 23 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.).) 24 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. 25 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 26 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.” 27 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 28 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; see also McKenzie v. Risley, 842 F.2d 1525, 1543 (9th Cir. 1988).) These states have chosen, along with pennsylvania, to provide guidance and direction to its sentencers. Nothing in this Court's precedents militates against that choice. Indeed, an analysis ~‘ this Court's decisions indicates ‘that the Eighth Amendment encourages these states’ choice of action. 29 In Gregg v. Georgia, supra, this Court rejected the argument that the Georgia statute was unconstitutional because it permitted a jury to decline to impose the death penalty even when aggravating circumstances were present by merely stating that such discretion did not violate the Constitution. (Id. at 199, 203.) In Zant v. Stephens, 462 U.S. 862 (1983), this Court rejected a renewed challenge to Georgia's “unbridled discretion” by simply noting that the Constitution did not require specific standards for the jury's consideration of aggravating and: | mitigating circumstances. 876 fn. 13, 880, 890.) (Id. at 875, Obviously, Gregg did not prohibit states from channeling discretion if the states thought it 30 necessary and desirable. In Proffitt v. Florida, supra, this Court approved a statute, like Pennsylvania's, that required imposition of the death penalty if the aggravating circumstances outweighed the mitigating circumstances. Florida interpreted its statute as compelling a death judgment in the absence of mitigating circumstances. (Barclay v. Florida, 463 U.S. 939, 961- 962 (1983) citing Cooper v. State, 336 S.2d 1133, 1142 (Fla. 1976) (Stevens, J. conc.); see also Woodson v. North Carolina, 428 U.S. 280, 315 (1976) ' (Rehnquist,. J. dis.); Roberts v. Louisiana, 428 U.S. 325, 362 fn. 8 (1976) (White, J. dis.).) The concurrence in Proffitt praised the Florida statute because it “required” the sentencer to impose the death 31 penalty if aggravating outweighed mitigating. (Proffitt v. Florida, supra, 428 U.S. at 260-261 (White, J. conc.).) When this Court again approved Plorida’s statute in Barclay v. Florida, supra, that state still interpreted its statute as establishing a rebuttable “presumption” of death. (Barclay v. Plorida, supra, 463 U.S. at 961-962 citing Williams v. State, 386 S.2d 538, 543 (Fla. 1980) (Stevens, J. conc.).) Notably, this Court also approved the Texas death penalty scheme. (Jurek v. Texas, 428 U.S. 262 (1976).) That statute’ required that the death | sentence be imposed if the sentencer answered three questions about the defendant in the affirmative. This Court approved the statute because it narrowed the class of death-penalty 32 eligible murderers and because it — permitted the sentencer to consider all mitigating circumstences. (Id. at 270- 276 (Stewart, J. plur.).) The concurrence in Jurek noted that the _ gentencer “must” impose the death penalty if it answered the questions affirmatively and that the statute did “not extend to juries discretionary power to dispense mercy. .. ." (Id. at 279 (White, J. conc.); see also Woodson v. North Carolina, supra, 428 U.S. at 315 (Rehnquist, J. dis.); Roberts v. Louisiana, supra, 428 U.S. at 359 (White, J: conc.).) Franklin v. Lynaugh, supra, reaffirmed the constitutionality of Texas’ death penalty scheme on the assumption that the statute permitted consideration of all mitigating evidence. (Franklin v. 33 Lynaugh, supra, 108 S.Ct. at 2330-2332 (White, J. plur.), 2333 (O'Connor, J: conc.).) ¥ 6. This Court’s recent opinion in a v. Lynaugh, __U.S.__, 57 U.S.L.W. 58 does not affect this analysis. In Penry, this Court merely held that Texas juries must be permitted consider give effect to mi os _ 34 This Court's other precedents also indicate, sometimes -by negative implication, that “unbridled discretion” is not a constitutional requirement. in California v. Ramos, 463 U.S. 992 (1983), this Court reiterated that the Constitution is not violated by a scheme that permits a jury to exercise unbridled discretion in choosing 4 penalty once 4 defendant is found to be a member of the class of death-eligible offenders. (Id. at 1008-1009 fn. 22 citing Zant v. Stephens, supra.) In Turner v. Murray, 476 U.S. 28 (1986), this Court analyzed the Virginia death penalty law which allows the sentencer to reject the death penalty if there are aggravating circumstances present, but no mitigating circumstances. The of all mitigating evidence. 35 plurality noted that “Virginia's death penalty statute gives the jury greater discretion than other systems which we have upheld against constitutional challenge.” (Id. at 34 citing Jurek v. Texas (White, J. plur.).) Thus, to argue that Pennsylvania's death penalty is unconstitutional, petitioner twists this Court’s jurisprudence inside out. He transforms permission to have “unbridled discretion” into a prohibition of any canalization of sentencer discretion whatsoever. In doing so, he advocates a third federal. requirement ee sentencing discretion be unbridled that will preclude legitimate state efforts to direct and guide sentencers in a rational and equitable fashion. 36 37 This Court has long recognized CONCLUSION 4 the limited and specific nature of its Amici curiae request this responsibility when reviewing a capital Court to affirm the judgment of the punishment scheme. (Gregg v. Georgia, Supreme Court of the Commonwealth of supra, 428 U.S. at 195.) Given past Pennsylvania. practice, Amici nevertheless expect that Respectfully submitted, whatever the Court’s decision in this JOHN K. VAN DE KAMP | At General case, it will generate renewed attacks RICHARD B. IGLEHART Chief Asst. Attorney on each of the statutory schemes ARNOLD 0. OVEROYE oe . Senior Asst. Attorney General authorizing the death penalty. We urge EDMUND D. McMURRAY sous wm DANE R. GILLETTE the Court, therefore, not only to uphold Deputy Attorneys General Pennsylvania's statute, but to reaffirm the position it took in Pulley v. WARD A. CAMPBELL Harris, supra, 465 U.S. at 45: "To