Amicus Curiae Brief — Whitmore v. Arkansas

7

MOTION FILED

OCT 1 0 1989

(,0)

No. 88-7146 |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

JONAS H. WHITMORE, INDIVIDUALLY AND AS

NEXT FRIEND OF RONALD GENE SIMMONS,

. Petitioner,

STATE OF ARKANSAS, et al.,

Respondents.

On Writ of Certiorari to the Supreme Court of Arkansas

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF

OF WASHINGTON LEGAL FOUNDATION,

PATRICK J. McNULTY, SR., MARJORIE McNULTY,

PARENTS OF MURDERED CHILDREN,

AND THE ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

GARY B. BORN *

BARBARA K. BRACHER

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

DANIEL J. POPEO

PAUL D. KAMENAR

WASHINGTON LEGAL FOUNDATION

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

Dated: October 10, 1989 * Counsel of Record

WILSON - Eras Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

we

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-7146

JONAS H. WHITMORE, INDIVIDUALLY AND AS

NEXT FRIEND OF RONALD GENE SIMMONS,

. Petitioner,

STATE OF ARKANSAS, et al.,

Respondents.

On Writ of Certivrari to the Supreme Court of Arkansas

MOTION FOR LEAVE TO FILE BRIEF

OF WASHINGTON LEGAL FOUNDATION,

PATRICK J. McNULTY, SR., MARJORIE McNULTY,

PARENTS OF MURDERED CHILDREN,

AND THE ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

Pursuant to Rule 36.3 of the rules of this Court, amici

respectfully move for leave to file the attached brief amici

curiae in support of respondent. Respondent has consented

to the filing of this brief. Petitioner has not.

The Washington Legal Foundation (WLF) is a national

non-profit publie interest law and policy center with more

than 120,000 members and supporters nationwide. While

WLF engages in litigation and the administrative process

in a variety of areas, it also devotes a substantial amount

of its resources to promoting victims’ rights and criminal

justice reform. In 1981, WLF published a “Crime Vic-

tims Impact Statement” manual to serve as a model guide

for implementation at the state level of the use of victim

impact information. WLF works with other victims’

rights groups, including the amici in this case.

Over the last eight years, WLF has also appeared as

amicus curiae in many death penalty cases before this

Court and lower federal courts. See, e.g., Eddings v.

Oklahoma, 455 U.S. 104 (1982) ; McCleskey v. Kemp, 481

U.S. 279 (1987). WLF also filed amicus curiae briefs in

the district courts in the Walker spy ring cases, and par-

ticipated in oral argument in United States v. Whitworth,

No. CR 85-552 JV (N.D. Cal. 1985), arguing that the

federal death penalty for espionage can be constitutionally

applied since the federal sentencing procedures meet ap-

plicable constitutional requirements.

Amici Patrick J. McNulty, Sr. and Marjorie McNulty

are the relatives of four of the fourteen victims murdered

by Ronald Gene Simmons. Their son, Dennis R. McNulty,

was married to Sheila, the daughter of Ronald Gene Sim-

mons. On December 26, 1987, Dennis drove his wife and

their two children, Sylvia, age 6, and Michael, age 21

months, to the Simmons household. Sheila entered the

house carrying Michael and put him down by the Christ-

mas tree. Simmons then shot her six times in the head.

Dennis, hearing the shots, ran into the house and was

shot in the head. Sylvia fled to a bedroom where Sim-

mons strangled her to death with a cord. Michael, too

young to flee, was also strangled, and then stuffed in a

garbage bag.

The McNultys believe that the death penalty is an ap-

propriate punishment for these murders of their son,

daughter-in-law, and grandchildren. They petition the

courts not to lose sight of the fact that capital cases

involve crushing, irreparable injury for the victims’ fam-

ilies as well as the victims themselves. While our legal

system remembers the murderer’s name in the caption of

the case, victims and their families all too often are for-

gotten. The McNultys further believe that it is an in-

justice that while the murderer of their loved ones is

willing to receive his just punishment, another murderer

is attempting to delay the imposition of that sentence and

to prevent them from closing this brutal chapter in their

lives. ;

Parents of Murdered Children (POMC), founded by

the parents of Lisa Hullinger, who was murdered in

1978, is a national non-profit, self-help support organiza-

tion based in Cincinnati, Ohio, with chapters nationwide.

Besides providing support for grieving parents and fam-

ily members, POMC provides information about the crim-

inal justice system, and seeks to make the system respon-

sive to the needs of the victim’s family.

The Allied Educational Foundation (AEF) is a non-

‘profit, charitable and educational foundation based in

Englewood, New Jersey. Founded in 1964, AEF is dedi-

cated to promoting education in diverse areas of study,

such as law and public policy, and has appeared as ami-

cus before this Court on a number of occasions.

All of the above-named amici wish to present a broader

perspective on the issues in this case than that offered

by the parties. Amici believe that their experiences with

crime and with the criminal justice system provide a

valuable perspective in this case. In particular, amici

wish to emphasize that our criminal justice system is

built on the premises of individual autonomy and indi-

vidual responsibility and that capital punishment is a

communal, moral judgment with deep roots in American

law.

For the foregoing reasons, amici are in a unique posi-

tion to aid the Court in its consideration of the issues

presented, and their interests are both substantial and

different from those of the parties. Accordingly, amici

respectfully request that their motion for leave to file an

amici curiae brief in support of respondent be granted.

Dated: October 10, 1989

Respectfully submitted,

GARY B. BoRN *

BARBARA K. BRACHER

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

DANIEL J. PoPEO

PAUL D. KAMENAR

WASHINGTON LEGAL FOUNDATION

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

* Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Eighth Amendment requires mandatory

appellate review of all capital sentences, including

those where the capital defendant voluntarily and

competently elects not to pursue an appeal?

2. Whether an unrelated third party, who has himself

suffered no distinct injury, has standing to allege a

violation of constitutional rights when the party most.

directly affected by the alleged violation elects not to

assert those rights?

(i)

II.

Il.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........._...

TABLE OF AUTHORITIES 2000.02.2....ee.eecceecececceeseeeeeeeeee

INTERESTS OF AMICI CURIAE .00000000..0..0.0..c2c20-000

SUMMARY OF ARGUMENT WW... eee

ARGUMENT ..........._..............

I.

PERMITTING VOLUNTARY AND COMPE-

TENT WAIVERS OF APPELLATE REVIEW

OF CAPITAL SENTENCES DOES NOT VIO-

LATE THE EIGHTH AMENDMENT ..............

A. Requiring Mandatory Appellate Review of

Capital Sentences Is Inconsistent with Fun-

damental Notions of Individual Autonomy

Embodied in the Bill of Rights.

B. Permitting Waivers of Appellate Review of

Capital Sentences Advances Important State

IE iil tth cts cleisltnclicnandlbiinnsseilabetantaonsiniedetone

C. Permitting Waivers of Appellate Review of

Capital Sentences Does Not Appreciably Im-

pair the Reliability of Capital Sentencing......

THE CONSTITUTIONALITY OF WAIVERS

OF APPELLATE REVIEW OF CAPITAL

SENTENCES IS NOT ALTERED BY THE

CURRENT PRACTICES IN VARIOUS

RSs ree oS ae

PETITIONER LACKS STANDING TO IN-

TERFERE WITH THE ARKANSAS CAPI-

TAL SENTENCING PROCESS ...W.WWW000002......

OID hlitecicncivninslinicsbsiiidieminassinsdtahinntntiabecnsnesneunasanne

(iii)

Page

11

13

21

27

iv

TABLE OF AUTHORITIES

Cases: Page

*Adams v. United States ex rel. McCann, 317 U.S.

gt : a passim

Barclay v. Florida, 463 U.S. 939 (1983) ................. 18

Barefoot v. Estelle, 463 U.S. 880 (1983) ................. 8, 11

Barrows v. Jackson, 346 U.S. 249 (1953) ............. 26

Bell v. Wolfish, 441 U.S. 520 (1979) 00.0. 10

Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971)... 8

Blackledge v. Allison, 481 U.S. 63 (1977) ............... 7,13

Brady v. United States, 397 U.S. 742 (1970) .......... 13, 19

California v. Brown, 479 U.S. 538 (1987) .............. 18

California v. Ramos, 463 U.S. 992 (1983) ............... 18, 22

Carter v. Illinois, 329 U.S. 173 (1946)... 7

CBS v. Democratic National Committee, 412 U.S.

ee ee hee eh 8,10

Coker v. Georgia, 483 U.S. 584 (1977) ........... 22

Collins v. State, 261 Ark. 195, 548 S.W.2d 106,

cert. denied, 484 U.S. 878 (1977) _.......00... 15, 16

Corbitt v. New Jersey, 439 U.S. 212 (1978) ......... 7

Davis v. Austin, 492 F. Supp. 273 (N.D. Ga.

ESSE SERS Pres as ae a 25, 27

Diaz v. United States, 223 U.S. 442 (1912) _........... 8

Duncan v. Louisiana, 391 U.S. 145 (1968) _........... 8

Eddings v. Oklahoma, 455 U.S. 104 (1982) 14

Enmund v. Florida, 458 U.S. 782 (1982) .............. 22

Evans v. Bennett, 440 U.S. 1301, cert. denied, 440

2 EE RY SSE OP Celt ea a ae 26

Faretta v. California, 422 U.S. 806 (1975) _...... 2, 6, 7, 21

Flast v. Cohen, 392 U.S. 83 (1968) _.... 24

Franz v. Lockhart, 700 F. Supp. 1005 (E.D. Ark.

I sient ncicictaiacaiebiial iat naniiiaiitiatah nih matali atin 13, 15, 24

Franz v. State, 296 Ark. 181, 754 S.W.2d 839

RARER TARR teow ar ir Se 8, 12, 27

Furman v. Georgia, 408 U.S. 288 (1972)... 11, 20

Gilmore v. Utah, 429 U.S. 1012 (1976) 15, 25

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

Hebert v. Louisiana, 272 U.S. 312 (1926) 6

Hewitt v. Helms, 482 U.S. 755 (1987) ............ 10

* Cases chiefly relied upon.

Vv

TABLE OF AUTHORITIES—Continued

Page

Illinois v. Allen, 397 U.S. 387 (1970) ..-................... 8

Lenhard v. Wolff, 603 F.2d 91 (9th Cir. 1979) ........ 2,10

Lenhard v. Wolff, 443 U.S. 1806 (1979) -................. passim

Lenhard v. Wolff, 444 U.S. 807 (1979) -.................. 25

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ...... 24

Lochner v. New York, 198 U.S. 45 (1905) ............... 22

Lockett v. Ohio, 488 U.S. 586 (1978) -..................... 4,14

*McCleskey v. Kemp, 481 U.S. 279 (1987) ..........—-- passim

McGautha v. California, 402 U.S. 183 (1971)........ 16

McKane v. Durston, 153 U.S. 684 (1894) -.............. 17

Miranda v. Arizona, 384 U.S. 486 (1966) -............. 7

Murray v. Giarratano, 109 S. Ct. 2765 (1989) ........ 17

North Carolina v. Alford, 400 U.S. 25 (1970)........ 7,21

Patton v. United States, 281 U.S. 276 (1930) -....... 7

People v. Deere, 41 Cal. 3d 353, 710 P.2d 925, 222

TES eee 3,12

People v. Stanworth, 71 Cal. 2d 820, 457 P.2d 889, _

80 Cal. Rptr. 49 (1969) ...........---...22.-----ee--esneeneoees 12

Poe v. Ullman, 367 U.S. 497 (1961) -...................... 6

Proffitt v. Florida, 428 U.S. 242 (1976) ................. 14,17

*Pulley v. Harris, 465 U.S. 37 (1984) ................... 14, 17, 22

Rees v. Peyton, 384 U.S. 312 (1966) -................... 8

Roberts v. United States Jaycees, 468 U.S. 609

I kk sednetntbocithindeptneenenmnne 8

*Ross v. Moffitt, 417 U.S. 600 (1974) -.................... 17

Schlesinger v. Reservists Committee to Stop the

War, 418 U.S. 208 (1974) ....................---.c.-eeeceeees 24

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) -... 7

Secretary of State v. Joseph H. Munson Co., 467

I I occcnccinnucscnssnniiontitepaiillividieeenettciajamectinne 26

Sierra Club v. Morton, 405 U.S. 727 (1972) .......... 26

Simmons v. State, 298 Ark. 193, 766 S.W.2d 422,

cert. granted, Whitmore v. Arkansas, 109 S. Ct.

I I aa heccitiseetstiteeinetnitttnninaticiamagnnieneninmnmes 25

Simon v. Eastern Kentucky Welfare Rights Or-

ganization, 426 U.S. 26 (1976) .....................-....-- 23, 24

Singer v. United States, 380 U.S. 24 (1965) .. ....8, 14, 21

* Cases chiefly relied upon.

vi

TABLE OF AUTHORITIES—Continued

Page

Singleton v. Wulff, 428 U.S. 106 (1976) _...... 25

Smith v. Armontrout, 812 F.2d 1050 (8th Cir.),

cert. denied, 483 U.S. 1088 (1987) ............ 26

Spaziano v. Florida, 468 U.S. 447 (1984) 20, 22

Sumner v. Shuman, 483 U.S. 66 (1987) 18

Taylor v. United States, 414 U.S. 17 (1978)........ 8

Thompson v. Oklahoma, 108 S. Ct. 2687 (1988) .... 22

United States v. Richardson, 418 U.S. 166 (1974).. 24

United States v. SCRAP, 412 U.S. 669 (1973) ._.... 25

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

ee nn chumsened passim

Warth v. Seldin, 422 U.S. 490 (1975) 24

Whitmore v. State, 296 Ark. 308, 756 S.W.2d 890

BRA PR OS te AL ce Nh 23, 24

Whitney v. California, 274 U.S. 357 (1927) ........... 6

Witherspoon v. Illinois, 391 U.S. 519 (1968) ......... 18

Woodson v. North Carolina, 428 U.S. 280 (1976).. 14, 19

*Zant v. Stephens, 462 U.S. 862 (19838) .................. 14, 18

United States Constitution:

Be cee A passim

FN SM er Si cM Ra Si IO Ae EIN passim

a passim

EES all PSR A OC Oe 9

Statutory Provisions:

a ee 7

FA A I RE i TD Ml 16

pO En a Se 16

I 16

Ark. Code Ann. § 5-4-602 (1987)... 15

Ark. Code Ann. § 5-4-6038 (1987)... 15

Ark. Code Ann. § 5-4-604 (1987)... 15

Ark. Code Ann. § 5-4-605 (1987)... 15

Ark. Code Ann. § 5-4-608 (1987)... 15

Ark. Code Ann. § 5-4-617 (1987)... 15

Ark. Code Ann. § 16-90-105 (1987) _....-..... 16

Ark. Code Ann. § 16-90-105(b) (1987) _................... 16

vii

TABLE OF AUTHORITIES—Continued

Ark. Code Ann. § 16-90-106(b) (1987) —...............

Ark. Code Ann. § 16-90-106(c) (1987) ..................

Ark. Code Ann. § 16-90-107(c) (1987) .....-..-........

Books:

ABA, Model Code of Professional Responsibility

EE es oa

ABA, Model Rules of Professional Conduct

heii idl eesdeinbenicialiagdadaiabaheininetances

ABA, Standards for Criminal Justice, The De-

fense Function Standard (Approved 1979)........

R. Berger, Death Penalties: The Supreme Court’s

te EE) | es

J. H. Ely, Democracy and Distrust (1980) .............

U.S. Department of Commerce,- Statistical Ab-

stract of the United States 1988 ....................---+-

Articles and Miscellaneous:

Dix, Appellate Review of the Decision to Impose

Death, 68 Geo. L.J. 97 (1979) ......-.....-----2-00000-----+-

Dix, Waiver as an Independent Aspect of Criminal

Procedure: Some Comments on Professor

Westen’s Suggestion, 1979 Ariz. St. L.J. 67 ........

Dix, Waiver in Criminal Procedure: A Brief For

More Careful Analysis, 55 Tex. L. Rev. 193

+, oe

Judicial Conference of the United States, Ad Hoc

Committee on Federal Habeas Corpus in Capi-

tal Cases, Committee Report and Proposal

EI

Rubin, Toward a General Theory of Waiver, 28

5 eS f. |

Stephen, Capital Punishments, 69 Fraser’s Maga-

zine 753 (1864) -................

Urofsky, A Right to Die: Termination of Appeu!

For Condemned Prisoners, 75 J. Crim. L. &

eee me ee Ree eee ene

Criminology 553 (1984) .... -

Weisberg, Deregulating Death, 1983 Sup. Ct. Rev.

I eh cites tl lecee aie haitiiesaddiadtald

Page

18

12

18, 19

viii

TABLE OF AUTHORITIES—Continued

Page

Westen, Away From Waiver: A Rationale For the

Forfeiture of Constitutional Rights in Criminal

Procedure, 75 Mich. L. Rev. 1214 (1977)........... 6

White, Defendants Who Elect Execution, 48 U.

Pitt. L. Rev. 853 (1987) passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-7146

JONAS H. WHITMORE, INDIVIDUALLY AND AS

NEXT FRIEND OF RONALD GENE SIMMONS,

. Petitioner,

STATE OF ARKANSAS, et al.,

Respondents.

On Writ of Certiorari to the Supreme Court of Arkansas

BRIEF OF WASHINGTON LEGAL FOUNDATION,

PATRICK J. McNULTY, SR., MARJORIE McNULTY,

PARENTS OF MURDERED CHILDREN,

AND THE ALLIED EDUCATIONAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTERESTS OF AMICI CURIAE

The interests of the amici curiae are set out fully in

the Motion for Leave to File accompanying this brief.

SUMMARY OF ARGUMENT

This case presents the question whether the Eighth

Amendment requires mandatory appellate review of a

capital sentence. As we show below, there is nothing in

the Bill of Rights that forces mandatory appellate review

upon a capital defendant who voluntarily and competently

chooses not to seek it.

2

Principles of individual autonomy and individual re-

_ sponsibility provide the very foundation of our Republic.

“(Whatever else may be said of those who wrote the

Bill of Rights, surely there can be no doubt that they

understood the inestimable worth of free choice.” Faretta

v. California, 422 U.S. 806, 833-34 (1975). Consistent

with this bedrock principle, the American system of crim-

inal justice has long afforded defendants the freedom—

and the responsibility—to make their own decisions about

such fundamental issues as pleading guilty and waiving

rights to counsel, jury trial, or habeas review.

It would be wholly inconsistent with these basic Amer-

ican values to invoke the Bill of Rights as the basis for

dictating mandatory appellate review of capital sentences.

Indeed, the Eighth Amendment, like the Constitution’s

other historic guarantees of personal liberty, was de-

signed to protect—not prohibit—individual autonomy and

freedom. A constitutional requirement of mandatory ap-

pellate review would stand the Bill of Rights on its head,

turning it from a charter of individual liberties into an

instrument of governmental coercion. This Court has

long and wisely refused to countenance such a result:

“What were contrived [by the Framers] as pretections

for the accused should not be turned into fetters.” Adams

v. United States ex rel. McCann, 317 U.S. 269, 279-80

(1942). Especially is this so where a capital defendant—

whose other freedoms are necessarily subject to the most

exacting governmental constraints—makes the intensely

personal decision to accept his sentence. “To deny him

that would be to incarcerate his spirit—the one thing

that remains free and which the state need not and should

not imvrison.” Lenhard v. Wolff, 603 F.2d 91, 94 (9th

Cir. 1979) (Sneed, J., concurring).

Beyond this, a constitutional requirement of mandatory

appellate review would frustrate important State inter-

ests, while providing little if any enhancement in the

reliability of the capital sentencing process. Both the

State of Arkansas and the families of murder victims

have an overriding concern in seeing that criminal pun-

ishments are carried out in a prompt and efficient fash-

ion and that the tragic events surrounding murders are

finally put to rest. Barefoot v. Estelle, 463 U.S. 880,

887-88 (1983); Lenhard v. Wolff, 443 U.S. 1306, 1307

(1979) (Rehnquist, J., in chambers). And the State has

an equally powerful interest in acknowledging a capital

defendant’s remorse and his willingness to stand and ac-

cept society’s punishment. There is nothing in the Eighth

Amendment that forbids a state from permitting a waiver

of appellate review in order to accommodate what one

capital defendant termed his wish to redeem his “last

vestige of dignity.” People v. Deere, 41 Cal. 3d 353, 710

P.2d 925, 929, 222 Cal. Rptr. 13 (1985). As Ronald Gene

Simmons said in this case, “I want no action that will

delay, deny, defer or denounce this very correct and

proper death sentence. ... [I]n my particular case any-

thing short of death would be cruel and unusual punish-

ment. . .. I only ask for what I deserve.” Franz v.

State, 296 Ark. 181, 754 S.W.2d 839, 844 (1988).

At the same time, permitting waivers of appellate re-

view does not appreciably impair the reliability of capital

sentencing. Most importantly, Mr. Simmons’ capital sen-

tence was imposed pursuant to an Arkansas statute that

afforded all of the trial and sentencing phase protections

that this Court found significant in Gregg v. Georgia,

428 U.S. 153 (1976), and its subsequent Eighth Amend-

ment decisions. Mandatory appellate review of every cap-

ital sentence might theoretically enhance the reliability

of the capital sentencing process. But the value of any

such enhancement would at best be marginal and uncer-

tain, and clearly would not justify a constitutional re-

quirement of mandatory appellate review.

Initially, the need for mandatory appellate review must

be seen in the context of the long-established rule that

there is no general constitutional requirement of appel-

4 -

late review in criminal cases and this Court’s repeated

recognition that there is “no perfect procedure for de-

ciding in which cases governmental authority should be

used to impose death.” Lockett v. Ohio, 438 U.S. 586,

605 (1978). Moreover, both commentators and this Court

have repeatedly recognized that appellate review of a

capital sentence is of inherently limited effectiveness.

This is in part because the decision to impose death is

ultimately a moral, communal judgment and in part be-

cause such decisions rest on consideration of innumerable

factors and are not easily susceptible to appellate review.

And finally, the likelihood that appellate review will en-

hance sentencing “reliability” is especially remote in cases

like this, where the defendant freely accepts the trial

court’s sentence and opposes “his” defense counsel.

In the light of all this, it should be clear that the

Eighth Amendment does not require a State—and a cap-

ital defendant—to forego the significant benefits flowing

from waivers of appellate review in exchange for the

marginal and uncertain enhancement in reliability offered

by mandatory appellate review. Perhaps because the con-

stitutional justifications for the Arkansas capital-

sentencing process are so clear, petitioner places principal

reliance upon the supposed fact that 36 out of 37 States

have rejected Arkansas’ approach to waivers of appellate

review.

This Court has never accorded significant weight to

the mechanical tallying of State laws in the context of

Eighth Amendment procedural safeguards. This sort of

analysis has been confined to cases involving the substan-

tive restrictions imposed by the Eighth Amendment. The

Court’s differing treatment has properly reflected its com-

paratively greater expertise and competence in the field

of procedural fairness and regularity. Nor should the

Court undertake any tally of State statutes in this case.

Arkansas has adopted an approach to waivers of appellate

5

review that is not merely fair and reasonable, but which

is more deferential to individual autonomy than other

available approaches. In these circumstances, it would be

unprecedented, and troubling, to hold that the entrenched

protections in the Bill of Rights for individual freedoms

have somehow been superseded by a poll of the statutes

currently prevailing in a majority of the several States.

Finally, petitioner Whitmore has failed to advance any

colorable claim to standing in this case. The personal in-

jury that Whitmore allegedly suffered because Simmons’

crimes were excluded from Arkansas’ comparative re-

view process is entirely speculative. And Whitmore’s

argument that the Court should allow him standing sim-

ply because of the societal importance of this case is

plainly foreclosed by this Court’s precedent. Nor should

this Court allow Whitmore standing based on “next

friend” or third-party standing theories. Article III’s

standing requirement would be frustrated by a rule al-

lowing self-appointed next friends to litigate on behalf

of competent capital defendants who voluntarily accept

their sentences.

I. PERMITTING VOLUNTARY AND COMPETENT

WAIVERS OF APPELLATE REVIEW OF CAPITAL

SENTENCES DOES NOT VIOLATE THE EIGHTH

AMENDMENT.

A. Requiring Mandatory Appellate Review of Capital

Sentences Is Inconsistent with Fundamental No-

tions of Individual Autonomy Embodied in the Bill

of Rights.

Principles of individual autonomy, and hence individ-

ual responsibility, provide the very basis for both our

Constitution and our most cherished social and political

institutions. As the Court has observed, “whatever else

may be said of those who wrote the Bill of Rights, surely

there can be no doubt that they understood the ines-

6

timable worth of free choice.”1 Or in Justice Harlan’s

words, “[o]ur Nation [is] built upon postulates of re-

spect for the liberty of the individual.” 2

These historic principles of individual autonomy and

responsibility provide the primary rationale for allowing

waivers of rights by criminal defendants in countless dif-

ferent contexts.* As one commentator has observed,

“(djuring the course of a criminal adjudication, the de-

fendant can be found to have waived virtually any of the

procedural protections provided for his benefit.”* Thus,

the Court has held that the Sixth Amendment “does not

force a lawyer upon a defendant,” reasoning that

“(wl]hat were contrived [by the Framers] as protections

1 Faretta v. California, 422 U.S. 806, 833 (1975); Whitney v.

California, 274 U.S. 357, 375 (1927) (“Those who won our inde-

pendence... .valued liberty both as an end and as a means.”).

2 Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissent-

ing). See also Hebert v. Louisiana, 272 U.S. 312, 316 (1926) (“fun-

damental principles of liberty and justice which lie at the base of

all our civil and political institutions ...”).

3 See Dix, Waiver in Criminal Procedure: A Brief for More

Careful Analysis, 55 Tex. L. Rev. 193, 219 (1977) (“an important

aspect—perhaps the essence—of the dignity of the individual is his

ability to control his own destiny”); Rubin, Toward a General

Theory of Waiver, 28 UCLA L. Rev. 478, 488-89 & n.55 (1981)

(“a waiver is a choice”) ; Dix, Waiver as an Independent Aspect of

Criminal Procedure: Some Comments on Professor Westen’s Sug-

gestion, 1979 Ariz. St. L.J. 67, 76-77; Westen, Away From Waiver:

A Rationale For the Forfeiture of Constitutional Rights in Criminal

Procedure, 75 Mich. L. Rev. 1214, 1255 (1977) (“waiver is thought

to be based . . . on a concept of free choice”). See also Adams v.

United States ex rel. McCann, 317 U.S. 269, 276-80 (1942) ; Faretta

422 U.S. at 834 n.45 (“Freedom of choice is not a stranger to the

constitutional design of procedural protections for a defendant in

a criminal proceeding.”’).

* Rubin, supra at 478. See also ABA, Standards for Criminal

Justice, The Defense Function Standard 4-3.1(b) & 4-5.2 (Approved

1979); ABA, Model Code of Professional Responsibility EC 17-7

(1979); ABA, Model Rules of Professional Conduct Rule 1.2

(1983).

7

for the accused should not be turned into fetters.”° Sim-

ilarly, it is well-established that the Constitution does

not prohibit a defendant—including a capital defendant—

from pleading guilty.© And nothing in the Constitution

forbids waivers—including in capital cases—of Fourth

Amendment rights,’ Fifth Amendment rights,’ the right

to a jury trial,® the right to confront one’s accus-

5 E.g., Adams, 317 U.S. at 279. See also Carter v. Illinois, 329

U.S. 173, 174-175 (1946); Faretta, 422 U.S. at 807.

6 E.g., Fed. R. Crim. P. 11; Corbitt v. New Jersey, 439 U.S. 212,

225 n.15 (1978); Blackledge v. Allison, 431 U.S. 63, 71 (1977).

The Court has repeatedly emphasized the wide discretion of the

States to permit (or forbid) the making of guilty pleas. Thus, in

North Carolina v. Alford, 400 U.S. 25, 37-39 (1970), the Court held

that the validity of a voluntary and competent guilty plea could not

be “seriously questioned,” even where the defendant professed belief

in his innocence. The Alford Court relied on the fact that the

defendant, while claiming innocence, also provided a factual basis

for his plea. Jd. at 38.

Petitioner’s reliance upon Alford’s reference to a factual basis

for a guilty plea is misplaced. First, it is by no means clear that

Alford’s observation about a factual basis amounts to a constitu-

tional requirement. Second, and more importantly, any analogous

“factual basis” requirement for waivers of appellate review of capi-

tal sentences is plainly satisfied in this case. After all, an Arkansas

sentencing jury and trial judge pronounced defendant’s sentence

following a presumptively valid proceeding pursuant to a constitu-

tional capital sentencing scheme. See infra pp. 15-16. And, of

course, the defendant himself has clearly endorsed this judgment.

See also White, Defendants Who Elect Execution, 48 U. Pitt. L.

Rev. 853, 864-65 (1987).

7 E.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).

8 E.g., Miranda v. Arizona, 384 U.S. 436, 475 (1966).

® This Court has squarely held that the Sixth Amendment does

not itself forbid waiver of a jury trial by a criminal defendant.

See Adams, 317 U.S. at 277-78; Patton v. United States, 281 U.S.

276 (1930). Indeed, this result has long been established notwith-

standing the literal language of Article III, §2, cl. 3 that “The

Trial of all Crimes, except in Cases of Impeachment, shall be by

8

ers,”° or the right to habeas review."

Although there are instances in which particular stat-

utes or rules restrict waivers of particular rights by crim-

inal defendants, it would be unprecedented to interpret

the Bill of Rights to deny a defendant the otherwise avail-

able freedom to waive a procedural protection. The Bill

of Rights was adopted as a charter of liberties, designed

to guarantee individual freedoms against governmental

intrusion. As Justice Douglas once observed, “‘[t]he strug-

gle for liberty has been a struggle against Government.

The essential scheme of our Constitution and Bill of

Rights was to take Government off the backs of people.” *”

The Bill of Rights has never been thought to provide

a mechanism for compelling individuals to act in the in-

Jury.” U.S. Const. art. III, § 2, cl. 3 (emphasis added). See also

Duncan v. Louisiana, 391 U.S. 145, 158 (1968).

Petitioner mistakenly relies upon Singer v. United States, 380

U.S. 24 (1965), in arguing that the Constitution forbids various

waivers by criminal defendants. In Singer, the Court reasoned that

nothing in the Constitution guarantees a criminal defendant the

right to trial by a judge and that “[t]he ability to waive a consti-

tutional right does not ordinarily carry with it the right to insist

upon the opposite of that right.” Jd. at 34-35. Singer stands only

for the proposition that both the prosecution and trial court have

rights—which are not the defendant’s to waive—to insist upon a

jury trial. Jd. at 36. .

10 Taylor v. United States, 414 U.S. 17, 19 (1973); Illinois v.

Allen, 397 U.S. 337, 343 (1970); Diaz v. United States, 223 U.S.

442, 450-51 (1912).

11 Rees v. Peyton, 384 U.S. 312 (1966).

12CBS v. Democratic Nat'l Comm., 412 U.S. 94, 164 (1973)

(Douglas, J., concurring). See also Roberts v. United States Jay-

cees, 468 U.S. 609, 618 (1984) (“the Bill of Rights is designed to

secure individual liberty”) ; Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388, 407 (1971)

(Harlan, J., concurring) (“the Bill of Rights is particularly in-

tended to vindicate the interests of the individual in the face of

the popular will as expressed in legislative majorities’).

9

terests of the State."* The Court made precisely this

point in holding that the Sixth Amendment forces neither

a lawyer nor a jury trial upon a defendant:

It hardly occurred to the framers of the... Bill

of Rights that an accused, acting in obedience to

the dictates of self-interest or the promptings of con-

science, should be prevented from surrendering his

liberty by admitting his guilt ... [Wle are asked

here to hold that an accused person cannot waive

trial by jury .. . unless he acts on a lawyer’s advice.

..+ [T]he Constitution does not force a lawyer upon

a defendant. He may waive his Constitutional right

to assistance of counsel if ... his choice is made with

eyes open. . . . When the administration of the

criminal law . . . is hedged about as it is by the

Constitutional safeguards for the protection of an

accused, to deny him in the exercise of his free choice

the right to dispense with some of these safeguards

. .. 1s to imprison a man in his privileges and call it

the Constitution.

18 Petitioner consistently fails to distinguish between decisions

reasoning that state laws prohibit waivers and contentions that

the Bill of Rights prohibits a waiver. Thus, petitioner asks whether

the “police power of the state to protect its citizens from self-

destructive acts can subjugate the individual rights of the citizen.”

Brief for Petitioner at 18. Petitioner answers in the affirmative,

reasoning that the police power of the several States allows them

to “control{] many aspects of our daily lives from the speed at

which we drive or whether motorcyclists wear helmets to weightier

issues of compelled blood transfusions.” Jd. Petitioner’s argument

ignores the fundamental point that it is not the Bill of Rights,

interpreted by the federal courts, that imposes speed limits, motor-

cycle helmet requirements or blood transfusions. It is the several

States, subject to the limits of the United States Constitution, that

regulate these activities.

14 Adams, 317 U.S. at 276-79 (emphasis added). See also US.

Const. amend. IX (“The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage others retained

by the people.”’).

Or, as then Chief Justice Burger reasoned in holding that the

First Amendment does not require public broadcasters to accept

certain types of material:

10

Indeed, there are especially compelling reasons that the

Bill of Rights ought not forbid a defendant’s waiver of

appellate review of his own death sentence. Deciding

whether to resist the death penalty, and if so how, are

intensely personal decisions; they implicate what is liter-

ally the very existence of the capital defendant. Moreover,

by virtue of their crimes, capital defendants place them-

selves into the uniquely restrictive environment of death

row, where they are permitted only the most limited free-

doms."* Within this context, it is all the more important

that the Bill of Rights not be understood to forbid a capi-

tal defendant the liberty to stand and face his sentence.

Judge Sneed put the matter well in Lenhard v. Wolff,

603 F.2d at 94 (Sneed, J., concurring) :

[The defendant] is an individual who, for reasons

I can fathom only slightly, has chosen to forego his

federal remedies. Assuming his competence . . . he

should be free to so choose. To deny him that would

be to incarcerate his spirit—the one thing that re-

mains free and which the State need not and should

not imprison.

In short, invoking the Eighth Amendment to require

mandatory appellate review of all capital sentences stands

the Bill of Rights on its head, turning a charter for in-

[I]t would be anomalous for us to hold, in the name of pro-

moting the constitutional guarantees of free expression, that

the day-to-day editorial decisions of broadcast licenses are

subject to the kind of restraints urged by respondents. To do

so in the name of the First Amendment would be a contradic-

tion.

CBS v. Democratic Nat’l Comm., 412 U.S. 94 (Burger, C.J., plu-

rality opinion) (emphasis added). See also id. at 139 (Stewart, J.

concurring) (“The First Amendment protects the press from gov-

ernmental interference; it confers no analogous protections on the

Government.”) (emphasis in original); id. at 162 (Douglas, J.,

concurring).

15 Cf. Hewitt v. Helms, 482 U.S. 755 (1987) ; Bell v. Wolfish, 441

U.S. 520, 545-46 (1979).

11

dividual liberties into an instrument of governmental co-

ercion. Such a result ought not lightly be reached and,

as we show below, petitioner’s arguments fall far short

of justifying any such novel reading of the Eighth

Amendment. Indeed, mandatory appellate review of capi-

tal sentences would frustrate important governmental in-

terests, while offering only marginal and uncertain en-

hancements in the reliability of capital sentencing.

B. Permitting Waivers of Appellate Review of Capital

Sentences Advances Important State Interests.

By permitting capital defendants to waive appellate

review of their sentences, a State advances a number of

vital interests. First, waivers of appellate review facili-

tate the prompt execution of capital sentences. The im-

portance of this interest to the States has frequently

been emphasized. And of course, the families and loved

ones of those who die by violent crime—like the McNultys

in this case—have a compelling interest in finally laying

to rest the tragic events surrounding a murder.

Second, permitting waivers of appellate review enables

‘a State tangibly to acknowledge a capital defendant’s ex-

pressions of remorse and his acceptance of society’s pun-

ishment. It is of course undeniable that the brutal

atrocities committed by capital defendants must ulti-

mately set them apart from civilized society: “When a

man is hung, there is an end to our relations with him.

His execution is a way of saying ‘You are not fit for this

world, take your chance elsewhere.’ ” 1”

Nevertheless, a State may quite properly allow a de-

fendant to accept his punishment in an effort to redeem

1° E.g., Barefoot v. Estelle, 463 U.S. 880, 887-88 (1983); Lenha

, S. ’ - : ra

v. Wolff, 443 U.S. 1306, 1307 (1979) (Rehnquist, J., in chambers).

se also Judicial Conference of the United States, Ad Hoc Comm. on

. Habeas Corpus In Capital Cases, Comm. Rep. and P posal

1, 7 (Aug. 23, 1989). . _ chy

17 Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J.,

concurring) (quoting Stephen, Capital Punishments, 69 F

Magazine 753, 763 (1864) ). —_—

12

what one capital defendant termed his “last vestige of

dignity.” ** Some capital defendants—like Ronald Gene

Simmons in this case—eventually come to express remorse

for their crimes and acceptance for their sentences. In

the proceedings below, Simmons said “I want no action

that will delay, deny, defer or denounce this very correct

and proper death sentence. ... [I]n my particular case

anything short of death would be cruel and unusual

punishment . . . I only ask for what I deserve.” Franz v.

State, 754 S.W.2d at 844. Similarly, in a California case,

the defendant’s lawyer asked, “What can [the defendant]

say to . . . what’s left of the family of his victims.

He virtually wiped out a family, a father and two small

children. ... The only thing he can do is to say ‘I accept

full responsibility for what I did.’” *

There is no reason to ignore voluntary expressions of

culpability by capital defendants, nor to treat them as

the somehow inherently unreliable products of disturbed

minds.”” On the contrary, we should welcome a brutal

18 People v. Deere, 710 P.2d at 929. See also Urofsky, A Right to

Die: Termination of Appeal For Condemned Prisoners, 75 J. Crim.

L. & Criminology 553, 554 (1984) (quoting Gary Gilmore: “when

I accept this most extreme punishment with grace and dignity, you,

the people of Utah want to back down and argue with me about it”).

19 People v. Deere, 710 P.2d at 929. See also People v. Stanworth,

71 Cal. 2d 820, 457 P.2d 889, 896 n.13, 80 Cal. Rptr. 49 (1969) (“I

and I alone must suffer for my acts and I understand also that the

law holds me to task for my actions.”).

20The premise for waivers of appellate review of capital sen-

tences is, of course, an affirmative showing of the competence of

the defendant and the voluntariness of his waiver. Franz v. State,

296 Ark. 181, 754 S.W.2d 839 (1988) ; White, supra at 867. As the

Arkansas Supreme Court concluded, a proper inquiry into the de-

fendant’s competence examines whether the defendant has “the

capacity to understand the choice between life and death and to

knowingly and intelligently waive any and all rights to appeal his

sentence.” Franz v. State, 754 S.W.2d at 843. The standard prop-

erly focuses upon the character of the defendant’s waiver and the

13

killer’s ultimate realization of the enormity of his crimes

and his acceptance of society’s judgment. As the Court

has held in the guilty plea context, there is an independ-

ent value in giving the defendant “the chance to acknowl-

edge his guilt” and promptly face his punishment.”

C. Permitting Waivers of Appellate Review of Capital

Sentences Does Not Appreciably Impair the Relia-

bility of Capital Sentencing.

Petitioner devotes considerable effort to showing that

the lack of mandatory appellate review unacceptably com-

promises the reliability of capital sentencing procedures.”

Since Gregg v. Georgia, 428 U.S. 153 (1976), the Court

has discerned various principles of procedural regularity

in the Eighth Amendment’s prohibition against “cruel and

unusual” punishments. These principles have required,

first, that sentencing authorities not be permitted un-

bridled discretion in imposing capital sentences, but that

they instead be provided with legislative direction that

likely consequences of his choice, as well as upon the possible effects

of death row confinement upon the voluntariness of the defendant’s

decision. See White, supra at 867-68.

*1 Blackledge v. Allison, 431 U.S. at 71. See Brady v. United

States, 397 U.S. 742, 748 (1970).

22 There is no reason in this case to consider the district court’s

rhetorical hypothetical: “If a state court sentenced a defendant to

be boiled in oil, and the defendant, for whatever reason, declined

to object, would a horrified nation be forced to stand by while the

sentence was carried out?” Franz v. Lockhart, 700 F. Supp. 1005,

1023 (E.D. Ark. 1988). Even assuming that such a decision would

ever be competently and voluntarily made, it is clear that the bal-

ance of State interests and Eighth Amendment concerns in the dis-

trict court’s hypothetical is entirely divorced from that in the

present case. Here, unlike the hypothetical, a substantively permis-

sible punishment is to be carried out following a sentencing pro-

ceeding pursuant to a state statute that afforded all of the trial and

sentencing phase protections required by the Eighth Amendment.

Thus, the defendant’s waiver advances entirely legitimate State

interests and, as we explain below, infra pp. 13-19, does not appre-

ciably impact upon Eighth Amendment concerns about procedural

regularity or substantively permissible punishments.

14

prevents arbitrary or freakish imposition of capital sen-

tences.2 And second, the Eighth Amendment has also

been understood to guarantee a capital defendant’s right

to introduce mitigating evidence regarding his character

at the sentencing phase.** These general principles have

been reflected in a variety of specific procedural safe-

guards, including bifurcated guilt-sentencing proce-

dures,” statutory enumeration of aggravating and miti-

gating circumstances,” and broad scope for the submis-

sion of mitigating evidence.”

Importantly, the various procedural safeguards adopted

in Gregg and its progeny have never been viewed as ends

unto themselves. They have instead served as means of

avoiding “arbitrary” or “freakish” decisions whether

“death is the appropriate punishment in a specific case.”

Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

Moreover, this Court has repeatedly recognized that

“Ta]ny capital sentencing scheme may occasionally pro-

duce aberrational outcomes.” * Viewed in this context,

28 Pulley v. Harris, 465 U.S. 37, 45 (1984) ; Gregg v. Georgia, 428

U.S. at 206-07 (plurality opinion of Justices Stewart, Powell, and

Stevens), 220-21 (White, J., concurring).

24 Lockett v. Ohio, 438 U.S. 586, 604 (1978); Eddings v. Okla-

homa, 455 U.S. 104, T10 (1982).

25 Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 242

(1976).

26 Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 242.

27 Lockett v. Ohio, 438 U.S. 586; Eddings v. Oklahoma, 455 U.S.

104.

28 Pulley v. Harris, 465 U.S. at 54. See McCleskey v. Kemp, 481

U.S. 279, 307 n.28, 313 (1987) (quoting Singer v. United States,

880 U.S. at 35) (“The Constitution is not offended by inconsistency

in results based on the objective circumstances on the crime”; “any

mode for determining guilt or punishment ‘has its weaknesses and

the potential for misuse’”); Lockett v. Ohio, 438 U.S. at 605

(“There is no perfect procedure for deciding in which cases gov-

ernmental authority should be used to impose death.”); Zant v.

Stephens, 462 U.S. 862, 885 (1983) (“not every imperfection in the

deliberative process is sufficient, even in a capital case, to set aside

a state-court judgment.”).

15

it is clear that permitting waivers of appellate review

does not unacceptably impair the reliability of capital

sentencing.

First, the capital sentence in this case was imposed

pursuant to a procedure that—apart from the issue of

appellate review—manifestly exceeds the requirements of

Gregg and its progeny.” Under the Arkansas capital sen-

tencing statute—which has been repeatedly upheld against

Eighth Amendment challenges—a death sentence may be

imposed only by a jury after a bifurcated trial at which

guilt and sentencing are considered separately. Ark.

Code Ann. § 5-4-602 (1987). Only defendants found

guilty of capital murder are potentially subject to the

death penalty. Ark. Code Ann. § 5-4-608 (1987). The

jury hears evidence concerning both mitigating and

aggravating circumstances, which are statutorily defined

in order to channel the jury’s discretion. Ark. Code Ann.

§ 5-4-604 (1987). The defendant, of course, can present

a broad range of evidence in mitigation. Ark. Code Ann.

§§ 5-4-602(4) & 5-4-605. The jury may impose the death

sentence only if it unanimously returns written findings

that specific aggravating circumstances existed beyond

a reasonable doubt, that these aggravating circumstances

outweigh any mitigating circumstances beyond a reason-

able doubt, and that the aggravating circumstances jus-

tify a sentence of death beyond a reasonable doubt. Ark.

Ann. Code § 5-4-603 (1987). |

2°The Arkansas laws establishing procedural requirements for

capital sentencing reside in §§ 5-4-601 through 5-4-617 of the Ar-

kansas Code. Ark. Code Ann. § 5-4-617 (1987). These capital

sentencing provisions have been repeatedly upheld against constitu-

tional challenge. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (en

banc), cert. denied, 434 U.S. 878 (1977) ; Franz v. State, 754 S.W.2d

839. Thus, this case does not implicate the concerns raised by

Justice White’s dissent in Gilmore v. Utah, 429 U.S. 1012, 1018

(1976), where “the state courts [had not] resolved the obvious,

serious doubts about the validity of the [Utah] Statute.” Jd. at

1018 (White, J., dissenting).

16

“The trial judge is not required to impose the death

penalty in every case in which the jury verdict prescribes

it.” Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert.

denied, 434 U.S. 878 (1977). See Ark. Code Ann. § 16-

90-107(c) (1987). For up to thirty days following the

verdict, information relevant to the appropriateness of the

sentence may be presented to and considered by the court.

Ark. Code Ann. § 16-90-105(b) (1987). When the de-

fendant appears for sentencing, the court must ask him

whether he has any legal reason why sentence should not

be pronounced against him. Ark. Code Ann. § 16-90-

106(b) (1987). The defendant then has an opportunity

to present any grounds he may have for a new trial or

arrest of judgment. Ark. Code Ann. § 16-90-106(c)

(1987). Even after the sentencing phase of the trial has

passed, the court may make any additional reviews of

constitutional objections to the death penalty under Rule

87 of the Arkansas Rules of Criminal Procedure provid-

ing for post-conviction relief.*°

In short, the trial and sentencing phases of the Arkan-

sas statute are fully consistent with this Court’s decisions

in Gregg and its progeny. And of course, any capital

sentence is imposed by a jury of the defendant’s peers,

and adopted by a judge, both cognizant of the “truly

awesome responsibility of decreeing death for a fellow

human.” McGautha v. California, 402 U.S. 183, 208

(1971). As a result, there is scant reason for believing

that capital sentences imposed by Arkansas sentencing

juries and judges will be “freakish” or “arbitrary.”

30 In addition, Rule 36.1 of the Arkansas Rules of Criminal Pro-

cedure provides that “[a]ny person convicted of a misdemeanor or

felony by virtue of a trial in any circuit court in this state has the

right to appeal to the Arkansas Court of Appeals or to the Supreme

Court of Arkansas.” The defendant must be informed of this right

when the sentence is announced and judgment entered. Ark. Code

Ann. § 16-90-105 (1987). Rule 36.4 requires the Arkansas Supreme

Court to review the entire record for any errors prejudicial to the

appellant’s right, where either a capital sentence or imprisonment

for life has been imposed.

17

Second, while requiring that appeals be taken in all

capital cases might theoretically enhance the reliability of

Arkansas’ capital sentencing process, any such enhance-

ment would at best be both marginal and uncertain. This

Court has long recognized the general rule that nothing

in the Constitution requires a right of appeal in criminal

cases.*' It is true that the Court has quite explicitly ac-

knowledged the availability of appellate review as one of

many factors that contribute to the constitutionality of

contemporary capital sentencing procedures.*? Nonethe-

less, the Court has been equally clear in leaving open the

question whether even the availability of appellate review

is constitutionally required.** And just last Term, in Mur-

ray v. Giarratano, 109 S. Ct. 2765, 2769 (1989), the

Court expressly recognized that the trial phase of the

capital sentencing process provides our principal assur-

ance of procedural regularity. As Chief Justice Rehnquist

put it, “(t]he additional safeguards imposed by the Eighth

Amendment at the trial stage of a capital case are, we

think, sufficient to assure the reliability of the process by

which the death penalty is imposed.” *

The need for and efficacy of appellate review of capital

sentences is limited because of the character of the sen-

31 See Ross v. Moffitt, 417 U.S. 600, 611 (1974); McKane v.

Durston, 153 U.S. 684, 687-88 (1894) (“A review by an appellate

court of the final judgment in a criminal case, however grave the

offense of which the accused is convicted, was not at common law

and is not now a necessary element of due process of law.”).

% E.g., Gregg v. Georgia, 428 U.S. at 206-07 (plurality opinion of

Justices Stewart, Powell, and Stevens).

83 Compare Pulley v. Harris, 465 U.S. at 47 with id. at 54

(Stevens, J., concurring) (Eighth Amendment requires “meaning-

ful appellate review”). See also Proffitt. v. Florida, 428 U.S. at

260-61 (Stewart, J., concurring). In Pulley v. Harris. the Court

held that there is no Eighth Amendment requirement for propor-

tionality review—which constitutes a principal feature of most

— appellate review statutes. Pulley v. Harris, 465 U.S. at

%4 Murray v. Giarratano, 109 S. Ct. at 2770-71 (Rehnquist, C

plurality opinion). ( quist, C.J.,

18

tencing process. The decision to impose death is a com-

munal, moral judgment: it “express[es] the conscience -

of the community on the ultimate question of life or

death.” * The Court has repeatedly observed that cap-

ital sentences rest on countless factors and involve

“uniquely human judgments that defy codification.”

McCleskey v. Kemp, 481 U.S. at 302. These sorts of de-

cisions are inherently difficult subjects of appellate re-

view.** For these reasons, many commentators have ob-

served that appellate review of capital sentencing deci-

sions cannot play a central role in contributing to the

reliability of the overall sentencing process.”

35 Witherspoon v. Illinois, 391 U.S. 510, 519 (1968). See also Cali-

fornia v. Brown, 479 U.S. 538, 545 (1987) (“Lockett and Eddings

reflect the belief that punishment should be directly related to the

personal culpability of the criminal defendant.”); Sumner v.

Shuman, 483 U.S. 66, 76 n.5 (1987) (quoting California v. Brown,

479 U.S. 538) (“[P]unishment should be directly related to the per-

sonal culpability of the criminal defendant. Thus, the sentence

imposed at the penalty stage should reflect a reasoned moral re-

sponse to the defendant’s background, character, and crime.”) ;

Weisberg, Deregulating Death, 1983 Sup. Ct. Rev. 305, 321 n.69

(“a judge or jury’s decision to kill is an intensely moral, subjective

matter that seems to defy the designers of general formulas for

legal decisions” ).

86 See Zant v. Stephens, 462 U.S. at 883; Id. at 902 (Rehnquist, J.,

concurring) (“sentencing decisions rest on a far-reaching inquiry

into countless facts and circumstances and not on the type of proof

of particular elements that returning a conviction does”) ; Barclay

v. Florida, 463 U.S. 939 (1983) ; California v. Ramos, 463 U.S. 992

(1983) (“myriad” factors) ; White, supra at 865-66 (“... the death

penalty determination is fundamentally different from the guilt

determination. The guilt determination is essentially concerned

with findings of fact; the penalty determination, on the other hand,

is essentially a discretionary judgment whether the defendant

should be sentenced to life imprisonment or death. . . . Determining

whether an aggravating circumstance is present is generally quite

simple.” ).

37 Dix, Appellate Review of the Decision to Impose Death, 68

Geo. L.J. 97, 123, 141, 158, 159-60 (1979) (“the failure of ap-

pellate review reflects the impossibility of the underlying task”’) ;

19

Third, and even more importantly for this case, the

likelihood that appellate review will enhance sentencing

reliability is especially remote where the defendant re-

fuses to cooperate with—and actively opposes—“his” de-

fense counsel. Even at the appellate level, a client’s re-

fusal to cooperate significantly affects a lawyer’s ability

to marshal and present a case, while the defendant’s af-

firmative approval of his capital sentence necessarily and

properly will affect the judgment of any tribunal.

And most fundamentally, appellate review is at bot-

tom a procedural means to the ultimate Eighth Amend-

ment end of ensuring that capital sentences are imposed

only in appropriate cases. See Woodson v. North Caro-

lina, 428 U.S. at 305. It bears emphasis that, assum-

ing competency, it is the capital defendant who will

often know his crimes and personal culpability far bet-

ter and more concretely than any appellate court of

law can grasp. Where the defendant freely and volun-

tarily accepts a capital sentence imposed by the trial

court, he himself provides compelling evidence that the

sentencing decision is appropriate.** Put differently, a

competent defendant’s voluntary conclusion that his own

capital sentence is not “cruel” must surely be entitled

to substantial weight in any Eighth Amendment analysis.

The Court has long respected the freedom of the in-

dividual States to fashion local solutions to moral and

political questions like those presented in this case. Even

Weisberg, supra at 321, n.69 (“Although the [Gregg] opinion lauds

the availability of appellate review, the informality of the proce-

dures in the penalty trial ensures that there is not a great deal of

legal error for the appellate court to correct.”’).

88 Cf. Brady v. United States, 397 U.S. at 748 (“Central to the

plea and the foundation for entering judgment against the defend-

ant is the defendant’s admission in open court that he committed

the acts charged in the indictment. He thus stands as a witness

against himself.”’).

20

in the Gregg-Jurek-Proffitt trilogy, the plurality abjured

any intention of promulgating some model capital-

sentencing procedure.*® And more recently, the Court has

emphasized its “unwilling[ness] to say that there is any

one right way for a State to set up its capital sentencing

scheme.” *°

This unwillingness to dictate particular procedures for

State capital sentencing statutes reflects fundamental

principles of federalism.“ It is, of course, hornbook law

that the Court “presume[s] the validity” of state law and

that “a heavy burden rests on those who would attack

the judgments of the representatives of the people.”

Gregg v. Georgia, 428 U.S. at 175. More recently, the

Court has emphasized the importance of “([c]onsidera-

tions of federalism, as well as respect for the ability of

a legislature to evaluate, in terms of a particular State,

the moral consensus concerning the death penalty and

its social utility as a sanction.” McCleskey v. Kemp,

481-U.S. at 302 (quoting Gregg v. Georgia, 428 US.

at 179-80).

There are compelling reasons for deferring to the

judgments of individual States in the present case.

As we have explained above, a constitutionally imposed

rule of mandatory appellate review would require States

to abandon a number of significant public policies served

by waivers of appellate review. At the same time, such a

rule would at best offer only a marginal and uncertain

enhancement in sentencing reliability. In these circum-

stances, it would be an unjustified departure from our

historic respect for individual autonomy to interpret

39 Gregg v. Georgia, 428 U.S. at 195 (“We do not intend to sug-

gest that only the above-described procedures would be permissible

under Furman.”).

40 Spaziano v. Florida, 468 U.S. 447, 464 (1984) ; McCleskey v.

Kemp, 481 U.S. at 302.

41 See Furman v. Georgia, 408 U.S. at 417-18 (Powell, J., dissent-

ing); Id. at 465-70 (Rehnquist, J., dissenting); R. Berger, Death

Penalties: The Supreme Court’s Obstacle Course 5-6 (1982).

21

the Eighth Amendment—riginally framed to protect in-

dividuals from federal governmental coercion—to forbid

an individual from voluntarily exercising a liberty guar-

anteed by State law.*

II. THE CONSTITUTIONALITY OF WAIVERS OF AP-

PELLATE REVIEW OF CAPITAL SENTENCES IS

NOT ALTERED BY THE CURRENT PRACTICES

IN VARIOUS STATES.

Perhaps because the validity of the Arkansas capital

sentencing process under ordinary methods of constitu-

tional analysis is so clear, petitioner places principal re-

liance upon the supposed “fact” that 36 out of 37 States

have rejected Arkansas’ approach to waivers of appellate

review. Even accepting petitioner’s characterization of

the capital-sentencing statutes of the several States," a

mechanical tally of State laws is of virtually no constitu-

tional significance in the present case. In making use of

*2 This case presents the question whether the Eighth Amend-

ment requires States to provide mandatory appellate review of

capital sentences; it does not present the question whether the

Eighth Amendment forbids States from requiring mandatory ap-

pellate review. We think it would be clear, however, that a State’s

legislative enactment of a nonwaivable appeal for the benefit of

capital defendants would be istent with the Eighth Amendment.

See North Carolina v. Alford, 400 U.S. 25, 38-39 & n.11 (1970) (“A

criminal defendant does not have an absolute right under the Con-

stitution to have his guilty plea accepted by the court.”); Singer

v. United States, 380 U.S. 24 (1965). Compare Faretta v. Califor-

nia, 422 U.S. 806 (1975).

43 In point of fact, the courts of only 7 States have actually con-

sidered whether local law forbids waivers of appellate review. It

may well be that the courts of all 36 States, except Arkansas, would

ultimately require mandatory appellate review over a defendant’s

opposition. But particularly in light of our long-standing com-

mitment to individual autonomy and responsibility, this result

ought not lightly be presumed from even arguably ambiguous statu-

tory language. Nor should it necessarily be assumed that manda-

tory appellate review would be consistent with State constitutional

guarantees of individual liberties. Responsibility for the interpre-

tation of State laws lies with State courts, and thé federal courts

are properly reluctant to intrude upon this domain.

22

tallies of State statutes, this Court’s decisions draw a

clear distinction between cases involving substantive

Eighth Amendment rights and those involving procedural

Eighth Amendment safeguards. Thus, the Court has on

several occasions relied upon a tally of State statutes

to strike down capital punishment for certain offenses

or defendants as cruel and unusual.** In contrast, where

procedural safeguards are involved, the Court has relied

on its own constitutional analysis, upholding laws even

when the overwhelming majority of the States follow

different procedures.“

The foregoing distinction between substantive and pro-

cedural issues is fully consistent with the relative institu-

tional competence of the federal courts in resolving dif-

ferent types of legal questions. The judiciary’s compe-

tence is particularly great in assessing the fairness and

efficacy of procedural protections.** In contrast, there is

considerably greater question about the ability of the

federal courts to pass judgment upon the legitimacy of

substantive rules, at least without meaningful Constitu-

tional guidance.’ And finally, it would be unusual, and

troubling, to hold that the Bill of Rights’ entrenched pro-

tections for individual freedom are somehow dictated by

a poll of the statutes currently prevailing in a majority

of the several states.

44 E.g., Thompson v. Oklahoma, 108 S. Ct. 2687 (1988) (death

penalty for 15-year old) ; Enmund v. Florida, 458 U.S. 782 (1982)

(death penalty for persons not involved in murder) ; Coker v. Geor-

gia, 483 U.S. 584 (1977) (death penalty for rape of adult woman).

45 See Pulley v. Harris, 465 U.S. at 71 (Brennan, J., dissenting)

(proportionality review, which, as dissent observed, was used in

more than 30 States, is not required by Eighth Amendment) ; Cali-

fornia v. Ramos, 463 U.S. 992 (jury instructions mentioning possi-

bility of parole, condemned in 25 of 28 States, not violative of

Eighth Amendment); Spaziano v. Florida, 468 U.S. 447 (judge’s

override of jury’s refusal to impose death penalty, prohibited in 33

of 37 States, does not violate Eighth Amendment).

46 J. H. Ely, Democracy and Distrust 21 (1980).

47 See Lochner v. New York, 198 U.S. 45 (1905).

23

III. PETITIONER LACKS STANDING TO INTERFERE

WITH THE THE ARKANSAS CAPITAL SENTENC-

ING PROCESS.

Claims that the Constitution has been violated, no mat-

ter how deeply-held, do not necessarily confer jurisdiction

upon the federal courts. Rather, the federal judicial

power is limited by Article III to actual cases and con-

troversies. The standing requirements of Article III re-

quire a plaintiff to show, at a minimum, that he has

suffered “a distinct and palpable injury to himself,”

which “fairly can be traced to the challenged action”

and which “is likely to be redressed if the requested re-

lief is granted.” ** Petitioner Jonas Whitmore, a con-

victed murderer and death row inmate, advances several

alternative theories in support of his claim to act on be-

half of respondent Ronald Gene Simmons. As we show

below, none of these theories is plausible.

Petitioner suggests first that he has standing by virtue

of his “direct and substantial interest” in having Sim-

mons’ crimes included in the Arkansas “data base against

which his crime is compared.” Brief for Petitioner at

21. This claim plainly fails to satisfy Article III’s min-

imum requirement that petitioner have suffered some dis-

tinet and palpable injury as a result of the constitutional

violation he alleges. Jonas Whitmore was not sentenced

to death because Ronald Gene Simmons waived appellate

review. He was sentenced to death because he robbed and

brutally murdered an innocent woman.” It is entirely

48 Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26,

38 (1976) ; Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 472 (1982).

49 Whitmore v. State, 296 Ark. 308, 316, 756 S.W.2d 890, 895

(1988). Whitmore filed an appeal from his conviction which was

automatically accepted and reviewed by the Arkansas Supreme

Court. In confirming the lower court verdict, the Arkansas Supreme

Court made a comparative review of the “wickedness, inhumanity

and heinousness of [Whitmore’s] capital case with other capital

24

speculative to suggest that adding one case to the Arkan-

sas capital sentence data bank would affect the validity

of this judgment. Petitioner’s claim offers nothing more

than “the remote possibility, unsubstantiated by allega-

tions of fact, that [his] situation might have been better

had [Simmons] acted otherwise.” ©

Second, petitioner asserts that he should be excepted

from the traditional “rules of practice” governing stand-

ing because he is an Arkansas citizen who shares a

weighty “societal right” not to have an execution carried

out arbitrarily and capriciously in his State. This Court’s

Article III decisions completely foreclose petitioner’s ar-

gument."' “The federal courts have abjured appeals to

their authority which would convert the judicial process

cases.” Whitmore, 756 S.W.2d at 895. The court held that the

robbery-murder of Whitmore’s victim was similar to the robbery-

murders in two other recent state cases also resulting in the imposi-

tion of the death penalty.

% Warth v. Seldin, 422 U.S. 490, 507 (1975). See also Linda R.S.

v. Richard D., 410 U.S. 614, 618 (1973) (claim by mother that

prosecution of child support statute against father would result in

payment of child support is “only speculative”) ; Simon, 426 U.S.

at 41 (1976) (claim that favorable tax ruling encouraged hospitals

not to treat indigents was not “fairly . . . traced to the challenged

action of the defendant”); Franz v. Lockhart, 700 F. Supp. 1005,

1010 (E.D. Ark. 1988).

In addition, any injury suffered by Whitmore is not “fairly trace-

able” to Simmons’ waiver of appellate review. Rather, it is trace-

able to Arkansas’ practice of excluding sentences which are not

appealed from its comparative review data base. Arkansas is, of

course, not required to include any particular cases within its data

base, nor even to provide proportionality review. Pulley v. Harris,

465 U.S. 37. There is no reason to believe that, if mandatory appel-

late review of capital sentences were constitutionally required,

Arkansas would include cases where tiie defendant supports his

sentence. '

51 See Valley Forge Christian College, 454 U.S. at 482-87; Flast

v. Cohen, 392 U.S. 83 (1968); Schlesinger v. Reservists Comm.

to Stop the War, 418 U.S. 208 (1974) ; United States v. Richardson,

418 U.S. 166, 179-80 (1974).

25

into ‘no more than a vehicle for the vindication of the

value interests of concerned bystanders.’ ”

Finally, petitioner claims standing as “next friend” of

Ronald Gene Simmons. At a minimum, two requirements

must be met for next friend standing. First, the person

on whose behalf the plaintiff acts must suffer from some

disability that prevents a direct action. Second, the peti-

tioner must demonstrate that he is in fact a “next friend.”

See Singleton v. Wulff, 428 U.S. 106, 115 (1976); Davis

v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980).

There is no indication at all in this case that Simmons

cannot act competently on his own behalf. Indeed, Sim-

mons has had three separate competency evaluations in

which he was repeatedly found competent to fully under-

stand the nature and effect of his waiver of appellate re-

view and to have made a “knowing and intelligent waiver

of any and all rights to appeal his sentence.” Simmons v.

State, 298 Ark. 193, 766 S.W.2d 422, 423, cert. granted,

Whitmore v. Arkansas, 109 S. Ct. 3240 (1989). Sim-

mons’ undeniable competency should foreclose any claim

of next friend standing by petitioner Whitmore. This at

least was the Court’s conclusion in both Gilmore v. Utah,

429 U.S. 1012 (1976), and Lenhard v. Wolff, 443 U.S.

1306 (stay granted) and 444 U.S. 807 (1979).™

Indeed, even if the Eighth Amendment affirmatively

prohibits Simmons from waiving appellate review, there

52 Valley Forge Christian College, 454 U.S. at 473 (quoting United

States v. SCRAP, 412 U.S. 669, 687 (1973) ).

53 In Gilmore the Court allowed the defendant’s execution to go

forward on the grounds that he had “made a knowing and intelligent

waiver of any and all federal rights he might have asserted after

the Utah trial court’s sentence was imposed.” 429 U.S. at 1013.

Four Justices went further and expressly concluded that Gilmore’s

voluntary and competent waiver barred “next friend” standing. Jd.

at 1016 (Burger, C.J., concurring); id. at 1017 (Rehnquist, J.

concurring).

26

is no basis for third party standing in this Court. Quite

apart from the Bill of Rights, Article III itself “reflects a

due regard for the autonomy of those persons likely to be

most directly affected by a judicial order.” Valley Forge

Christian College v. Americans United For Separation of

Church & State, Inc., 454 U.S. 464, 473 (1982). Put

differently, Article III’s standing requirement serves “to

put the decision as to whether review will be sought in

the hands of those who have a direct stake in the out-

come.” Sierra Club v. Morton, 405 U.S. 727, 740 (1972).

Unlike some other capital defendants who have waived

appellate review, Simmons continues to urge affirmance

of his sentence in this Court. Allowing next friend stand-

ing in these circumstances trenches significantly upon

Simmons’ autonomy: regardless of how “worthy and high

minded the motive of ‘next friends’ may be, they in-

evitably run the risk of making the actual defendant a

pawn to be manipulated on a chessboard larger than his

own case.” Lenhard v. Wolff, 443 U.S. at 1312. Article

III’s standing requirement serves in part to prevent pre-

cisely such results.

Even assuming that Simmons is deemed legally incom-

petent to defend his waiver, Whitmore has plainly failed

54 In the First Amendment context, the Court has allowed third

party standing where the person “actually engaged in the pro-

tected activity [may] ... refrain from engaging further in the

protected activity” rather than risk punishment. Secretary of State

v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984). Simmons is

in no way deterred from litigating here on his own behalf. Rather,

he simply has expressed his intent to waive his right of appeal.

Likewise, this is not a case where it is “difficult if not impossible

for the persons whose rights are asserted to present their griev-

ances before any court.” Barrows v. Jackson, 346 U.S. 249, 257

(1953). Simmons has instead merely refused to assert his right

to appeal.

55 F.g., Evans v. Bennett, 440 U.S. 1301, cert. denied, 440 U.S. 987

(1979) ; Smith v. Armontrout, 812 F.2d 1050, 1052 (8th Cir.), cert.

, denied, 483 U.S. 1033 (1987).

27

to meet the relational requirement for next friend stand-

ing. Appropriate persons to maintain next friend actions

are “close relatives, such as a parent, spouse, or sibling,

who maintain a close personal relationship with the ag-

grieved.” ** Petitioner Whitmore’s only claimed relation-

ship to Simmons is as a fellow death row inmate. This

in no way satisfies the historic requirement of a close and

enduring personal relationship.

CONCLUSION

“One of society’s most basic tasks is that of protecting

the lives of its citizens and one of the most basic ways

in which it achieves the task is through criminal laws

against murder.” McCleskey v. Kemp, 481 U.S. at 297

(quoting Gregg v. Georgia, 428 U.S. at 226 (White, J.,

concurring) ). Tragically, our society has in recent dec-

ades fundamentally breached its obligation to protect the

lives of American citizens. Americans of all walks and

Stations of life have been subjected to a brutal, ever-

escalating tide of violence and murder that is simply in-

comprehensible: there were 16,689, 17,545 and 19,527

reported murders in the United States in 1984, 1985 and

1986—a toll of 50 human lives every single day of the

year.’ The human and spiritual losses that these figures

reflect cannot too long be endured by a civilized people.

Here, a jury and judge of the State of Arkansas, acting

pursuant to a presumptively valid State statute, have

concluded that the crimes committed by Ronald Gene

Simmons are beyond the endurance of civilized society.

Simmons has voluntarily and competently agreed with

that judgment. Nothing in the Eighth Amendment for-

bids this choice.

56 Franz v. State, 296 Ark. 181, 754 S.W.2d 839, 841 (1988)

(quoting Davis v. Austin, 492 F. Supp. 273, 275 (N.D. Ga. 1980) ).

57 U.S. Department of Commerce, Statistical Abstract of the

United States 1988 160.

28

For the foregoing reasons, the decision of the Supreme

Court of Arkansas should be affirmed.

Dated: October 10, 1989

Respectfully submitted,

GARY B. BORN *

BARBARA K. BRACHER

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

DANIEL J. POPEO

PAUL D. KAMENAR

WASHINGTON LEGAL FOUNDATION

1705 N Street, N.W.

Washington, D.C. 20036

(202) 857-0240

* Counsel of Record