# Amicus Curiae Brief — Boyde v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0550%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 370

## Text

. % 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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gut VU) Vij
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
0698D/emm (M)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0550%3A09. Public record. Not legal advice.