Amicus Curiae Brief — Boyde v. California

. % Guprame Court, U.

\i FILED

'}i SEP 10 19

‘ JOSEPH F. SPANIOL, Jt

NO. 88-6613 CLERK

8,

a

IN THE SUPREME COURT OF THE UNITED STATES

Term, 1988

RICHARD BOYDE,

Petitioner,

-VSs-

STATE OF CALIFORNIA,

Respondent,

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CALIFORNIA

BRIEF AMICI CURIAE STATE OF ARIZONA,

JOINED BY THE STATES OF ALABAMA,

MISSOURI, MONTANA, NORTH CAROLINA,

OHIO, PENNSYLVANIA AND WYOMING.

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division Division

PAUL J. MCMURDIE

Assistant Attorney General

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)255-4686

(Counsel of Record)

Attorneys for Amici Curiae

y D%

DONALD SIEGELMAN

Attorney General, State of

WILLIAM L. WEBSTER

Attorney General, State of

MARC RACICOT

Attorney General, State of

LACY H. THORNBURG

Attorney General, State of

ANTHONY J. CELEBREZZE, JR.

Attorney General, State of

ERNEST D. PREATE, JR.

Attorney General, State of

JOSEPH B. MEYER

Attorney General, State of

Alabama

Missouri

Montana

North Carolina

Ohio

Pennsylvania

Wyoming

QUESTION PRESENTED

May a death penalty instruction guide

and channel the sentencer's discretion by

requiring that the death penalty be

imposed if the aggravating circumstances

outweigh the mitigating circumstances?

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CASES AND AUTHORITIES

INTEREST OF AMICi CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

THE CALIFORNIA JURY INSTRUCTION

PROPERLY REQUIRED THAT THE DEATH

PENALTY BE IMPOSED IF AGGRAVATING

CIRCUMSTANCES OUTWEIGHED MITIGATING

CIRCUMSTANCES.

CONCLUSION

a

iii

27

TABLE OF CASES AND AUTHORITIES

Case Page

Adamson v. Ricketts

865 F.2d 1011 (9th Cir. 1988) 18

Barclay v. Florida

463 U.S. 939

103 S. Ct. 3418

77 L. Ed. 2d 1134 (1983) 26,a0can

California v. Brown

479 U.S. 538

107 S. Ct. 837

93 L. Ed. 2d 934 (1987) re Pes re: Fe.

Campbell v. Kincheloe

829 F.2d 1453 (9th Cir. 1987) 23

Commonwealth v. Blystone

549 A.2d 81

109 S. Ct. 1567 (1989) 22

Commonwealth v. Peterkin

$13 A.26 373

479 U.S. 1070 (1986) 21,22

Cooper v. State

336 S.32 1133 (Fia. 1976) 14

Franklin v. Lynaugh

U.S.

108 S. Ct. 2320

101 L. Ed. 2d 155 (1988) 4,140.42

Furman v. Georgia

408 U.S. 238

oa &. Ct. 2726

33 L. Ed. 2d 346 (1972) 6,8,10,11,22

-ili-

Grandison v. State

305 Md. 685

506 A.2d 580 (1986)

Gregg v. Georgia

428 U.S. 153

96 S. Ct. 2909

49 L. Ed. 2d 859 (1976)

Jurek v. Texas

428 U.S. 262

96 S. Ct. 2950

49 L. Ed. 2d 929 (1976)

Lowenfield v. Phelps

484 U.S. 231

108 S. Ct. 546

98 L. Ed. 2d 568 (1988)

McCleskey v. Kemp

481 U.S. 279

isg7y &. Ct. 2796

95 L. Ed. 2d 262 (1987)

McGautha v. California

402 U.S. 183

91S. Ct. 1454

28 L. Ed. 2d 711 (1971)

McKenzie v. Risley

842 F.2d 1525 (9th Cir.

Penry v. Lynaugh

U.S.

109 S. Ct. 2934

106 L. Ed. 2d 256 (1989)

People v. Coleman

605 P.2d 1000 (1979)

-iVve

20

3,4,8,10,

11,12,25

4,11,15,16

1988) 23

13,16,17

23

People v. Melton

44 Cal. 3d 713

244 Cal. Rptr. 867

750 P.2d 741 (1988) 8

People v. Montgomery

Aas. 328. Da?

494 N.E.2d 475 (1986) 20

People v. Tichnell

306 Md. 428

509 A.2d 1179 (1986) 20

Proffitt v. Florida

428 U.S. 242

96 S. Ct. 2960

49 L. Ed. 2d 913 (1976) 3obbs bas ae

Pulley v. Harris

465 U.S. 37 -

104 S. Ct. 871

79 L. Ed. 2d 29 (1984) 26

Roberts (Stanislaus) v. Louisiana

428 U.S. 325

96 S. Ct. 3001

49 L. Ed. 2d 974 (1976) 4,14,16

State v. Beaty

158 Ariz. 232

762 P.2d 519 (1988) 18

State v. Dicks

615 S.W.2d 126 (Tenn. 1981) 21

State v. Gretzler

135 Ariz. 42

659 P.2d 1 (1983) 18

State v. Jeffries

105 Wash.2d 398

717 P.2d 722 (1986) 22

State v. Jenkins

15 Ohio St.3d 164

473 N.E.2d 264 (1984) 21

State v. Price

195 N.J.Super 285

478 A.2d 1249 (1984) 19

State v. Ramseur

106 N.J. 123

524 A.2d 188 (1987) 19

Sumner v. Shuman

483 U.S. 66

107 S&S. Ct. 2416

97 L. Ed. 2d 56 4

Williams v. State

386 S.2d 538 (Fla. 1980) 15

Woodson v. North Carolina

428 U.S. 280

96 S. Ct. 2978

49 L. Ed. 2d 944 (1976) 4.78243,

14,16,19,22

Authorities

Arizona Revised Statutes Annotated

§ 13-703(E) 17

California Jury Instructions

8.84.2 5

United States Constitution

Eighth Amendment 2.12,4238,22

@Vie

i

INTEREST OF AMICI CURIAE

Amici curiae are states that have

adopted sentencing schemes that provide

that the sentencing authority must impose

a sentence of death if it determines that

the aggravating circumstances outweigh

the mitigating circumstances. California

has a similar procedure; petitioner is

asking this Court to declare that

procedure unconstitutional. Amici curiae

have an interest in this issue because

this Court's ruling on the California

procedure will affect the validity of the

, : 1

sentencing procedures in our states.

SUMMARY OF ARGUMENT

California's jury instruction

required the sentencer to impose the

death penalty if it found that the

1. This Court is presently reviewing

a Similar attack on Pennsylvania's death

penalty statute in Blystone v.

Pennsylvania, No. 88-6222.

aggravating circumstances outweighed the

mitigating circumstances. 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 regarding

the proper sentences 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.

Amici submit that no one system for

imposing the death penalty is, or should

be, preferred over any other valid

system. Amici urge this Court to uphold

the jury instruction given in

petitioner's case, not because it is

constitutionally compelled, but solely

because it is not constitutionally

prohibited.

ARGUMENT

THE CALIFORNIA JURY INSTRUCTION

PROPERLY REQUIRED THAT THE DEATH

PENALTY BE IMPOSED IF AGGRAVATING

CIRCUMSTANCES OUTWEIGHED MITIGATING

CIRCUMSTANCES.

Petitioner contends that the

California jury instruction requiring the

jurors to impose a sentence of death if

they conclude that the aggravating

circumstances outweigh the mitigating

circumstances, creates a mandatory

sentencing scheme and is thus

unconstitutional. In 1976, this Court

reviewed five death penalty cases. In

the three cases upholding the

"“guided-discretion"” statutes, the

opinions emphasized that those schemes

permitted the sentencing authority to

consider relevant mitigating

Circumstances pertaining to the offense,

and a range of factors concerning

individual defendant. Gregg v. Georgia,

428 U.S. 153, 197 (1976); Proffitt v.

Florida, 428 U.S. 242, 251-52 (1976);

Jurek v. Texas, 428 U.S. 262, 270-71

(1976). This Court declared two

mandatory sentencing schemes

unconstitutional. The opinions stressed

they were fatally flawed by their failure

to permit presentation of mitigating

circumstances for the consideration of

the sentencing authority. Woodson v.

North Carolina, 428 U.S. 280, 303-05

(1976); Roberts (Stanislaus) v.

Louisiana, 428 U.S. 325, 333-34 (1976).

Thus, the constitutional mandate found in

these capital cases is that “it is

constitutionally required that the

sentencing authority have information

sufficient to enable it to consider the

Character and individual circumstances of

—

a defendant prior to imposition of a

death sentence." Sumner v. Shuman, 483

U.S. 66, » BOF Bs CO. 2646. 27a0!

Gregg, 428 U.S. at 189 n.38.

So long as the sentencing scheme meets

these requirements, it is constitutional.

The jury instruction given in

California is a proper application of

this Court's pronouncement on permissible

sentencing procedures. The instruction

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. Former

Caljic 8.84.2. The instruction required

the jurors to impose the death sentence

if they found that the aggravating

Circumstances outweighed the mitigating

Circumstances. By allowing the jurors to

consider all relevant evidence in

mitigation and then instructing them to

impose a sentence of death if the

aggravating circumstances outweigh the

mitigating circumstances, this

instruction allows for the individual

consideration required, and at the same

time avoids the arbitrary selection of

those condemned to death that this Court

rejected in Furman v. Georgia, 408 U.S.

238 (1972).

Petitioner argues that this provision

of the instruction is unconstitutional

because it creates a “mandatory death

penalty” that precludes individualized

sentencing based on the Circumstances of

the offense and the offender.

Petitioner's argument is an unwarranted

extension of this Court's jurisprudence.

Once a state establishes a rational scheme

for the discretionary consideration of

aggravating and mitigating factors,

further federal review is unnecessary.

Petitioner's argument would engraft a

third requirement of “unbridled

discretion" for sentencers.

As recently as 1988, this Court held

that the Constitution requires no more

-6§-

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.8. , 108 S. Ct. 546, 555 (1988).

This Court has never indicated that the

states must guide the exercise of

discretion in a certain way or, as

petitioner apparently contends, permit

that exercise of discretion to be

unbridled. “Much in our cases suggests

just the opposite." Franklin v.

Lynaugh, 0.6. .....» 408°8. Ct. 2326,

2331 (1988) (White, J.).

Initially, it must be noted that the

Califérnia jury instruction is not the

type of “mandatory” scheme first

condemned by this Court in Woodson v.

North Carolina, 428 U.S. 280 (1976).

Unlike the “mandatory” statutes

invalidated by this Court, California law

permits consideration of all mitigating

evidence. People v, Melton, 44 Cal. 3d

713, 761, 244 Cal. Rptr. 867, 750 P.2d 741,

cert. denied, 109 S. Ct. 329 (1988).

Furthermore, unlike the true “mandatory”

Statutes this Court denounced in Woodson,

California's law is consistent with the

Eighth Amendment requirement that the death

penalty be imposed in a rational and

aun-aebitracy fashion. Furman v. Georgia,

408 U.S. 238 (1972). Prior to Furman v.

Georgia, 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 led to

irrational and arbitrary results. Gregg v.

Georgia, 428 U.S. 153, 188 (1976), citines

Furman v. Georgia, 408 U.S. 238 (1972).

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=06;

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 of death penalty

eligibilty and has considered all

mitigating evidence.

(T]his 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, 108 S. Ct. at 2331

(White J.).

It is understandable why states

choose to channel 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, 428 U.S. at 188, citing

Furman v. Georgia, (emphasis added).

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, 479 U.S. at 543.

Furthermore, states can ensure that the

«ite

death penalty will be imposed "with

regularity,” rather than "freakishly or

rarely." Proffitt v. Florida, 428 U.S.

242, 260 (1976) (White, J. concurring);

Jurek v. Texas, 428 U.S. 262, 278-79

(1976) (White, J. concurring). The

channeling of sentencer discretion can

"minimize the risk of wholly arbitrary

and capricious action." Gregg v.

Georgia, 428 U.S. at 189. Such schemes

promote the rational and predictable

administration of death penalty laws.

California v. Brown, 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." Furman v.

Georgia, 408 U.S. at 238 (White, J.

concurring). They also foster

reliability in further judicial review.

California v. Brown, 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 circumstances. Franklin v.

Lynaugh, 108 S. Ct. at 2331 n.12 (White,

J.). The “weighing” process does not

eliminate subjectivity, but it does set

“clear and objective” standards to

minimize discrimination. Gregg v.

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

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,

=)

108 S. Ct. at 2331 (White, J.), Citing

California v. Brown, 479 U.S. at 544

(O'Connor, J. concurring). Since these

Statutes do not preclude consideration of

any mitigating evidence, they protect the

Eighth Amendment interest by ensuring that

the death penalty is “appropriate” in a

particular case. Woodson v. North

Carolina, 428 U.S. at 305 (Stewart, J.).

Yet, by requiring that the death penalty

then be imposed “if the aggravating

circumstances 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).

In Proffitt v, Florida, this Court

approved a statute that required

imposition of the death penalty if the

aggravating circumstances Outweighed the

atSe

mitigating circumstances. Florida has

interpreted its statute as compelling a

death judgment in the absence of

mitigating circumstances. Barclay v.

Florida, 463 U. S. 939, 961-62 (1983)

citing Cooper v. State, 336 S.2d 1133,

1142 (Fla. 1976), cert. denied, 431 U.S.

925 (1977) (Stevens, J. concurring); see

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

280, 315 (1976) (Rehnquist, J.

dissenting); Roberts v. Louisiana,

428 U.S. 325, 362 n.8 (1976) (White, J.

dissenting). The concurrence in Proffitt

praised the Florida statute because it

"required" the sentencer to impose the

death penalty if aggravating circumstances

outweighed mitigating circumstances.

Proffitt v. Florida, 428 U.S. at 260-61

(White, J. concurring). When this Court

again approved Florida's statute in

Barclay v. Florida, that state still

interpreted its statute as establishing a

akties

rebuttable “presumption” of death.

Barclay v. Florida, 463 U.S. at 961-62

Citing Williams v, State, 386 S.2d 538,

543 (Fla. 1980) (Stevens, J. concurring).

This Court has likewise 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-eligible murderers and

because it permitted the sentencer to

consider all mitigating circumstances.

428 U.S. at 270-76 (Stewart, Sse aes

concurrence in Jurek noted that the

sentencer "must" impose the death penalty

if it answered the questions affirmatively

sod thnk the statute did “not extend to

juries discretionary power to dispense

mercy. . . ." 428 U.S. at 279 (White, J.

a

concurring); see also Woodson v. North

Carolina, 428 U.S. at 315 (Rehnquist, J.

dissenting); Roberts v. Louisiana, 428 U.S.

at 359 (White, J. concurring). Franklin v.

Lynaugh, reaffirmed the constitutionality of

Texas' death penalty scheme on the assumption

that the statute permitted consideration of

all mitigating evidence. 108 S. Ct.

at 2330-32 (O'Connor, J. concurring) .7

2. This Court's recent opinion in

Penry v. Lynaugh, U.S. ,

57 U.S.L.W. 4958 does not affect this

analysis. In Penry, this Court merely

held that Texas juries must be permitted

to consider and give effect to mitigating

evidence without being restricted by the

three “special issues" that Texas juries

must answer affirmatively to impose the

death penalty. Penry is no more than an

extension of the line of cases beginning

with Jurek v, Texas, and Woodson v. North

Carolina, that require sentencers to

consider and give independent weight to

all relevant mitigating evidence in order

to ensure that the death penalty is

“appropriate.” That, of course, is a

question separate from the one presented

in this case -- whether states may guide

and channel the decision that follows the

consideration of that evidence. In fact,

this Court merely held "there is no

constitutional infirmity in a procedure

that allows a jury to recommend mercy

nite

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

(the trial judge) finds one aggravating

factor and no mitigating factors

Substantial enough to call for leniency.

Ariz. Rev. Stat. Ann. § 13-703(E). The

Arizona courts have interpreted this

formula as requiring the imposition of

the death sentence if aggravating

circumstances qualitatively Outweigh

mitigating circumstances. State v.

based on the mitigating evidence."

57 U.S.L.W. at 4964. Once ayain, this

Court is merely indicating that it will

tolerate such discretion. Penry must be

analyzed in the context of the peculiar

Texas statute. Its holding cannot be

extended to other states, such as

California, which already permit full

consideration of all mitigating evidence.

. =) =

Gretzler, 135 Ariz. 42, 659 P.2d l, 13-14,

cert. denied, 461 U.?S. 971 (1983). This

requirement means that "a defendant will

Stand the same chance of receiving the

death penalty from a judge who does not

Philosophically believe in the death

penalty as from a judge who does." State

v. Beaty, 158 Ariz. 232, 762 P.2d 519, 534

(1988), cert. denied, 109 S. Ct. 3200

(1989). 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."

(1a.)?

New Jersey mandates a death penalty if

the aggravating factors outweigh

3. 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 this Court in Ricketts v. Adamson,

(No. 88-1553).

«itn

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 (1984). The New

Jersey courts have noted that this Court

has never required a so-called “mercy”

provision. Id. New Jersey has rejected

the argument that the jurors should also

decide explicitly that death is the

“appropriate” penalty since the vagueness

of that term would “undermin[e] 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

n.81 (1987).

Illinois requires imposition of the

death penalty if there are no mitigating

«ie

factors sufficient to preclude that

punishment. This finding “is synonymous

with a finding that death is the

appropriate penalty." People v.

Montgomery, 122 I1l. 517, 494 N.E.2d 475,

482 (1986), cert. denied, 479 U.S. 1101

(1987).

Maryland courts have also rejected the

argument that jurors 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 from the many in which it is

not." People v. Tichnell, 306 Md. 428,

509 A.2d 1179, 1999, cert. denied,

479 U.S. 995 (1986). Such an instruction

would permit “unguided discretion."

Grandison v. State, 305 Md. 685, 506 A.2d

580, 616, cert, denied, 479 U.S. 873

(1986).

afin

Ohio requires the jurors to recommend

the death penalty to the court if

aggravating factors outweigh mitigating

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 St.3d 164, 473 N.E.2d 264,

280-281 (1984), cert. denied, 472 U.S.

1032 (1985), discussing Barclay v.

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

concurring).

Tennessee has upheld its analogous

death penalty law, since its statute

requires the sentencer to consider all

mitigating factors. State v. Dicks,

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

cert. denied, 454 U.S. 933 (1981).

The Pennsylvania Supreme Court in

Commonwealth v. Peterkin, 513 A.2d 373,

387-88 (Penn.), cert. denied, 479 U.S.

1070 (1986), held that the channelling of

fe

considerations of mercy and leniency into

a scheme of aggravating and mitigating

circumstances was consistent with

Furman. By limiting the discretion of

the sentencing body, the court found the

Pennsylvania sentencing scheme minimized

the risk of wholly arbitrary and

Capricious action. Commonwealth v.

Peterkin, 513 A.2d at 388; see also

Commonwealth v. Blystone, 549 A.2d 8]

(Penn. 1988), cert. granted, 109 S. Ct.

1567 (1989).

The State of Washington requires that

the death penalty be imposed if "there

are not sufficient mitigating

Circumstances to merit leniency." State

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

722, 737 (1986). Washington has rejected

the argument that this statute imposes a

“mandatory” death penalty in violation of

Woodson, since the statute allows for

jury discretion in considering all

mitigating factors. However, once the

otiZtie

jurors have exercised that discretion,

"CLiJt 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 imposed in a just

manner.” 717 P.2d at 738; see also

Campbell v. Kincheloe, 829 F.2d 1453,

1466 (9th Cir. 1987), cert. denied, 102

L. Ed. 2d 369 (1988).

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 (1979), cert. denied, 446 U.S.

970 (1980). 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. 605 P.2d at 1017; see also

McKenzie v. Risley, 842 F.2d 1525, 1543

atin

(9th Cir.), cert. denied, 109 S. Ct. 250

(1988).

These states have chosen, along with

California, to provide guidance and

direction to its sentencers. Nothing in

this Court's precedents militates against

that choice. Indeed, an analysis of this

Court's decisions indicates that the

Eighth Amendment encourages these states'

choice of action.

To argue that California's jury

instruction is unconstitutional,

petitioner twists this Court's

jurisprudence inside out. He transforms

permission to have “unbridled discretion”

into a prohibition of any channelization

of sentencer discretion whatsoever. In

doing so, he advocates that a third

federal requirement be added that would

mandate that the sentencing discretion be

unbridled, and to do so would preclude

legitimate state efforts to direct and

af@a

guide sentencers in a rational and

equitable fashion.

This Court has long recognized the

limited and specific nature of its

responsibility when reviewing a capital

punishment scheme. Gregg v. Georgia,

428 U.S. at 195. Amici expect that

whatever the Court's decision in this

case, it will generate renewed attacks on

each of the statutory schemes authorizing

4. The Amicus brief filed on behalf

of petitioner emphasizes the problem with

a statutory scheme that allows for

“unbridled discretion." Petitioner's

Amicus proudly boasts that in Alameda

County, California, in over half of the

cases where the jurors found that the

aggravating circumstances outweighed the

mitigating circumstances and were allowed

unbridled discretion, the jurors elected

to impose life. Such evidence supports

the position of respondent. If the

jurors consider all relevant mitigation

and determine that it does not outweigh

the aggravating circumstances proved by

the state, the imposition of a life

sentence is either an arbitrary decision

in violation of Furman, or based on the

inappropriate consideration of irrelevant

mitigation (i.e. race of accused, race of

the victim, social status of the victim,

etc.) in violation of California v.

Brown, 479 U.S. at 543.

otic

the death penalty. We urge the Court,

therefore, not only to uphold the

sentencing scheme in California, Eut also

to reaffirm the position it took in

Pulley v. Harris, 465 U.S. 37, 45

(1984): to endorse the princinle as a

whole “is not to say that anything

different is unacceptable."

afte

CONCLUSION

Amici curiae request this Court to

affirm the judgment of the Supreme Court

of the State of California.

Respectfully submitted,

ROBERT K. CORBIN

Attorney General

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division

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PAUL (J... McCMURDIE

Assistant Attorney General

Criminal Division

(Counsel of Record)

Attorneys for AMICI CURIAE

a.

CERTIFICATE OF SERVICE

THREE copies of this Brief were mailed

September 13, 1989, to:

DENNIS A. FISCHER

1448 Fifteenth Street

Suite 206

Santa Monica, California 90404

Attorney for Petitioner

FREDERICK R. MILLAR, Jr.

110 West A Street

Suite 700

San Diego, California 92101

Attorney for Respondent

SOLICITOR GENERAL

Department of Justice

Washington, D.C. 20530

tek VRBALZL Ae

PAU J/ MCMURDIE

a ant Attorney General

Criminal Division

1275 West Washington

Phoenix, Arizona 85007

Attorneys for AMICI CURIAE

CRM89-1333

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