Amicus Curiae Brief — Dawson v. Delaware

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10

c i JUL 25 1992

No. 90-6704

4 t

In the Supreme Court of the United States

OCTOBER TERM, 1991

DAVID DAWSON, PETITIONER

Vv.

STATE OF DELAWARE

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF DELAWARE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, ITT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

& D

u THE Git

QUESTION PRESENTED

Whether the Constitution bars a State from introduc-

ing, in a capital sentencing proceeding, evidence concern-

ing the defendant’s association with a white racist prison

gang.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 0.2.2.2... ....eeeeeeeeeeeeeeeeeee es 1

RI oe tt 2

ESE OTS 8

Argument:

The Constitution does not bar the admission of evi-

dence concerning the defendant’s beliefs, attitudes,

and associations at the sentencing phase of a capi-

tal trial ........ eo lpr Oe eed Basehor he A 10

A. The sentencing authority may consider a wide

range of factors in making the sentencing deci-

(ASSL Nina 2 Sw BT A 10

B. The Constitution does not erect a per se barrier

excluding from a capital sentencing proceeding

relevant evidence concerning a defendant’s be-

I ee ee, 12

1. A defendant’s beliefs and associations may

be relevant to the capital sentencing deci-

(BRR AR OS ELS EIS or A et ee 13

2. The constitutional restrictions on criminaliz-

ing protected conduct do not apply where the

evidence is relevant to the guilt or penalty

phase of a criminal trial .................................. 15

C. A per se rule would distort the sentencing proc-

ess and would be difficult to apply —..........00000....... 20

D. The absence of a per se rule barring admission

of evidence concerning beliefs and associations

does not imply that such evidence is always ad-

Fe Eat UR a ee I a 24

E. The evidence and argument at issue in this case .

did not violate petitioner’s constitutional rights.. 26

EAE a ee 27

TABLE OF AUTHORITIES

Cases:

Baldwin v. Alabama, 472 U.S. 872 (1985)... 7

Barclay Vv. Florida, 463 U.S. 939 (1983) 17, 18

(111)

IV

Cases—Continued : Page

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

Beck v. Alabama, 447 U.S. 625 (1980) .......000.00000.... 25

Booth v. Maryland, 482 U.S. 496 (1987) ..........0000.... 12

Brandenburg V. Ohio, 395 U.S. 444 (1969) ............. 15, 16

California Vv. Brown, 479 U.S. 5388 (1987) .............. 7

California v. Ramos, 463 U.S. 992 (1983) .......... 11, 13, 19

Coker v. Georgia, 433 U.S. 584 (1977) ......0000.00. 20

Commonwealth v. Abu-Jamal, 521 Pa. 188, 555

A.2d 846 (1989), cert. denied, 111 S. Ct. 215

ID cinnsihsditialeninsibcnenisiadiiiitnateeenie aelleniaied tidtiniinaass 7, 18,19

Darden Vv. Wainwright, 477 U.S. 168 (1986)... 25

Eddings v. Oklahoma, 455 U.S. 104 (1982)... 13

Franklin v. Lynaugh, 487 U.S. 164 (1988) ....... 14, 20-21

Gregg V. Georgia, 428 U.S. 153 (1976) 0. 11

Healy v. James, 408 U.S. 169 (1972) 2.00. 15

Jones V. North Carolina Prisoner’s Union, 433 U.S.

RRR SES RE ERSS Se 15

Jurek v. Texas, 428 U.S. 262 (1976) 2.000.000. 12

Lockett v. Ohio, 438 U.S. 586 (1978) 2.000000. 13, 20

McCleskey v. Kemp, 481 U.S. 279 (1987) ............. 11,18

North Carolina v. Pearce, 395 U.S. 711 (1969)... 11

Payne Vv. Tennessee, No. 90-5721 (June 27, 1991).. 8, 10,

11, 12, 18, 21, 22, 23, 25, 26

Penry Vv. Lynaugh, 492 U.S. 302 (1989) ....000000...... 13, 20

Rutan Vv. Republican Party of Illinois, 110 S. Ct.

ERE CE as 21

Scales v. United States, 367 U.S. 203 (1961)... 15, 16

Skipper v. South Carolina, 476 U.S. 1 (1986)........ 13

South Carolina v. Gathers, 490 U.S. 805 (1989)... 12, 23

Snyder v. Massachusetts, 291 U.S. 97 (1934) ........ 21

Texas V. Johnson, 491 U.S. 397 (1989) .....0000 15

Thornburg v. Abbott, 490 U.S. 401 (1987) ............ 15

Turner V. Safley, 482 U.S. 78 (1987) .......0000.. 15

United States v. Abel, 469 U.S. 45 (1984) _........ 16, 18

United States v. Bakker, 925 F.2d 728 (4th Cir.

aa Re REN eI re TEEN MLO EN TST ER 24

United States v. Bangert, 645 F.2d 1297 (8th Cir.

a a 24

United States v. Grayson, 438 U.S. 41 (1978)... 11,14

United States v. Hendrix, 505 F.2d 1233 (2d Cir.

SEIU dink secisicrslaasepltnedeceonatlgeiniienlsihaetastanadiiidaaditadts Cia dientes ; 14

United States v. Tucker, 404 U.S. 443 (1972) ....... 10

Cases—Continued : Page

Wasman Vv. United States, 468 U.S. 559 (1984)... 11

Williams v. New York, 337 U.S. 241 (1949) —........ 10, 11

Woodson Vv. North Carolina, 428 U.S. 280 (1976)... 13

Zant v. Stephens, 462 U.S. 862 (1983) _....... 7,9, 13, 18, 24

Constitution and statutes:

U.S. Const. :

SESE ERAS SCT CR Poe 4, 12, 17, 21, 23, 24

a eeeeanuanliiiaiiialans 12

I saunusinistiamnninnssions 25

I dineenliaieadiaasinoniion 1

18 U.S.C. 3661 ......... PETE ARs eo ER Se OO 1

21 U.S.C. 848(e) ............. LPI SE a mee OS aT ae ne 2

I a ceceeasibenieinsiad 2

| SR ee Oe Seer Ta ae ee 2

Del. Code Ann. tit. 11 (1985) :

I soca snccedanmimenmmnaneiiinns 7

§ 4209(j) _........ See Sp eI RDO TOE NEAT 7

I a aeleasciabaeeiitsldniale 7

Miscellaneous :

137 Cong. Rec. $3195-S3196 (daily ed. Mar. 13,

RE a eee nce ee nN 2

137 Cong. Rec. S$9986-S9987 (daily ed. July 15,

GE SRA Anke) So ae ONE ee 2

S. 635, 102d Cong., Ist Sess. (1991) ...... SOT Beers 2

S. 1241, 102d Cong., Ist Sess. (1991) —....... Seat 2

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-6704

DAVID DAWSON, PETITIONER

Vv.

STATE OF DELAWARE

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF DELAWARE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The issue in this case is important to the administra-

tion of criminal justice in the federal system because it

concerns the extent to which evidence of a defendant’s

character may be introduced at a sentencing proceeding.

In imposing sentences under the Sentencing Guidelines,

Congress has directed federal courts to consider “the his-

tory and characteristics of the defendant,” 18 U.S.C.

3553(a) (1), and has provided that “[n]o limitation shall

be placed on the information concerning the background,

character, and conduct of a person convicted of an offense

which a court of the United States may receive and

consider for the purpose of imposing an appropriate sen-

tence,” 18 U.S.C. 3661.

Even if the issue is confined to capital sentencing pro-

ceedings, the federal government has an interest in the

resolution of the issue presented here because of its ap-

(1)

2

plication to federal capital cases. For example, federal

law authorizes the death penalty for intentional killings

connected to a continuing criminal enterprise. 21 U.S.C.

848(e). For certain kinds of homicides, the death pen-

alty may be imposed if the sentencing authority finds one

or more statutory aggravating circumstances to be pres-

ent. 21 U.S.C. 848(k). In addition, information may be

presented as to any other aggravating factor for which

notice has been provided. 21 U.S.C. 848(j). The statute

thus authorizes the government te introduce evidence

concerning the defendant’s character and likely future

behavior to assist the jury in determining whether to

recommend the death penalty for a defendant who quali-

fies for that penalty under the statute. The Court’s reso-

lution of the question presented here will affect the ad-

ministration of that provision of federal law and similar

provisions in legislation that may be enacted in the

future.’

STATEMENT

Following a jury trial, petitioner was convicted on

four counts of first degree murder, six counts of posses-

sion of a deadly weapon during the commission of a

felony, and one count each of first degree burglary, sec-

ond degree burglary, robbery, theft, and possession of a

deadly weapon by a prohibited person. He was sentenced

to death on the murder convictions and imprisonment

for a total of 100 years on the other convictions. The

Delaware Supreme Court affirmed. J.A. 135-209.

1. Shortly after midnight on December 1, 1986, peti-

tioner and three other inmates escaped from the Dela-

1 Recent legislative efforts demonstrate a continuing interest in

the use of non-statutory aggravating evidence in capital sentencing

proceedings. See S. 635, 102d Cong., Ist Sess. §§ 3592-3593, 137

Cong. Rec. S$3195-S3196 (daily ed. Mar. 13, 1991) (providing for

the admission of non-statutory aggravating evidence at a sentencing

hearing in federal death penalty cases); S. 1241, 102d Cong., Ist

Sess. §§ 3592-3593, 137 Cong. Rec. S¥986-S9987 (daily ed. July 15,

1991) (same).

3

ware Correctional Center near Smyrna, Delaware. Peti-

tioner stole a car and drove south; the other three in-

mates stole another car and headed north. Early that

morning, petitioner burglarized a house near Kenton,

Delaware, where he stole a motorcycle jacket, pocket

watches, and loose change. J.A. 137-140.

Shortly thereafter. petitioner entered the home of

Richard and Madeline Kisner, located about half a mile

from the site of the burglary. Mrs. Kisner was alone in

the house preparing to leave for work. Petitioner mur-

dered Mrs. Kisner and stole the Kisners’ car and some

money. J.A. 140-142.

When the Kisners’ son returned home from school that

afternoon, he found his mother lying on a bed in a red

house coat. She had been stabbed 12 times in the chest

and had lacerations on her forehead. She had been

gagged with a sock, and her hands had been tied behind

her back with shoelaces. There were strangulation

wounds on her neck. J.A. 141.

That evening, petitioner appeared at the Zoo Bar in

Milford. Delaware, wearing a motorcycle jacket that did

not fit him. Petitioner introduced himself to a woman in

the bar and told her his name was “Abaddon,” which

he said meant “one of Satan’s discip'es.” Petitioner sub-

sequently was asked to leave the bar. At about 9:25 that

evening the police found the Kisners’ car parked near

the bar. Petitioner’s fingerprints were found inside the

car. J.A. 142-143, 185.

About an hour later, a Delaware state trooper re-

sponded to a call to investigate a one-car accident. The

car, which had been reported stolen from a location near

the Zoo Bar, had been driven across the road and into a

ditch. At about 5:25 the next morning, after a house-to-

house search, petitioner was found hiding on the floor of

an automobile about three-tenths of a mile from the

scene of the accident. He was wearing the stolen motor-

cycle jacket and carrying four of the stolen pocket

watches. He was also carrying a sock that matched the

4

one used to gag Mrs. Kisner. Red fibers on the motor-

cycle jacket and petitioner’s shirt matched those of the

victim’s house coat. Bloodstains on petitioner’s clothing

matched the victim’s blood type. J.A. 143-145.

2. Petitioner is a member of the Aryan Brotherhood,

a “white supremacist Nazi oriented gang.” J.A. 146.

The Aryan Brotherhood “originated at the San Quentin

Prison in California in response to perceived threats from

racial minority gangs of inmates.” Jbid. The trial court

stated that the Aryan Brotherhood has a reputation for

violence “against black and Latino prison gangs,” and

that “{i]ts apparent motto [is] [k]ill to get in and die

to get out.” Jd. at 146-147 n.5. Petitioner has the words

“Aryan Brotherhood” tattooed on his right hand. Peti-

tioner also has several swastikas tattooed on his body.

While awaiting trial, petitioner painted a swastika on

the wall of his prison cell. Jd. at 146-147.

Prior to trial, petitioner filed a motion in ‘imine seek-

ing to exclude al] evidence relating to the Aryan Brother-

hood. The State responded that it did not intend to

introduce any such evidence at the guilt phase of the

trial, but that it would offer the evidence at the penalty

phase if petitioner were convicted. The trial court de-

ferred ruling on the motion. J.A. 5, 147-149.

Following petitioner’s conviction, the State gave notice

that during the penalty phase of the trial it intended to

introduce (1) expert testimony about the Aryan Brother-

hood, (2) testimony that petitioner refers to himself as

“Abaddon” (angel of hell) and has the name “Abaddon”

tattooed in red letters across his stomach, and (3) photo-

graphs of petitioner’s tattoos and the swastika he painted

on the wall of his prison cell. Petitioner argued that this

evidence was inflammatory and irrelevant, and that its

admission would violate his rights under the First Amend-

ment. J.A. 183-184.

After hearing the parties’ arguments, the trial court

observed that

5

membership or the act of joining an organization of

any particular kind, whether it be the Aryan Brother-

hood or the Boy Scouts of America can be probative

of character, at least to some extent. The real issue

before the Court is whether the probative value is

outweighed by the danger of unfair prejudice. So

let’s focus the argument that way.

J.A. 184. Following a recess, the parties agreed to the

following stipulation, which was entered into evidence

without further objection:

The Aryan Brotherhood refers to a white racist

prison gang that began in the 1960s in California in

response to other gangs of racial minorities. Separate

gangs calling themselves the Aryan Brotherhood now

exist in many state prisons including Delaware.

Ibid.

In return for petitioner’s agreement to the stipulation,

the State agreed not to call an expert witness to testify

about the Aryan Brotherhood. Petitioner’s counsel told

the trial court that the stipulation “should resolve that

issue.” J.A. 54. In addition to the stipulation, the State

presented evidence of peiitioner’s lengthy criminal record,

which included numerous juvenile offenses, 14 felony con-

victions, 24 conduct violations as an inmate, and 6

escapes. The woman who encountered petitioner in the

Zoo Bar testified that he identified himself as “Abaddon,”

and said that the name means “one of Satan’s disciples.”

Finally, a detective testified that the definition of ‘“Abad-

don” is “angel of the bottomless pit,” and that petitioner

has the word “Abaddon” tattooed across his stomach and

the words “Aryan Brotherhood” tattooed on his right

hand. The State submitted into evidence, without objec-

tion, photographs of petitioner’s tattoos. J.A. 80-87, 145-

146, 184-187.

Petitioner presented the testimony of two members of

his family at the penalty hearing. They testified that

petitioner had good relations with his family, that they

6

still loved him and would visit him in prison, and that

petitioner had once offered to donate one of his kidneys

to a relative. J.A. 88-95, 146. In addition, petitioner

elicited testimony from one of the State’s witnesses that

since 1981 petitioner has participated in Alcoholics Anony-

mous and in the Green Tree Program, a program for the

treatment of drug and alcohol abuse. Jd. at 79.

During closing argument, the prosecutor commented

that petitioner “[c]ould have joined the [Jaycees] in

prison. Could have gotten his GED. Could have done

something good. What does he become? An Aryan

Brother. What does that say about his character and

propensities?” J.A. 105. In response, petitioner’s counse!

argued that the jury should give petitioner’s membership

in the Aryan Brotherhood and his use of the name

Adabbon “absolutely no weight.” Jd. at 115. Petitioner’s

counsel argued that the jury “might find it personally dis-

tasteful that he is what the State says he is, but if he

thinks it, if he believes it, but if he doesn’t do anything

about it, where is the harm?” Jd. at 117. In rebuttal,

the prosecutor argued to the jury that petitioner’s mem-

bership in the Aryan Brotherhood and his use of the name

Abaddon “reflects upon [petitioner’s] character. It tells

us something about him.” Jd. at 126.

The jury recommended that petitioner be sentenced to

death, and the trial court imposed sentence in accordance

with that recommendation. J.A. 133, 135-136.

3. The Delaware Supreme Court unanimously affirmed

the convictions and the death sentence. J.A. 135-209. The

court rejected petitioner’s contention that the evidence

concerning the Aryan Brotherhood and petitioner’s use

of the name “Abaddon” should not have been admitted

at the penalty hearing. The court observed that the jury,

having found three statutory aggravating factors that

made petitioner eligible for the death penalty,? was “re-

?The jury found the following statutory aggravating circum-

stances: (1) the murder was committed by an escaped prisoner;

7

quired to make an individualized determination of whether

[petitioner] should be executed or incarcerated for life,

based upon [petitioner’s] character, his record and the

circumstances of the crime.” J.A. 189. In making that

determination, the court explained, “it is desirable for the

jury to have as much information before it as possible.”

Id. at 190. The court noted this Court’s statement that “a

death sentence based upon consideration of ‘factors that

are constitutionally impermissible or totally irrelevant to

the sentencing process, such as for example the race, re-

ligion or political affiliation of the defendant’ would

violate the Constitution.” Jbid. (quoting Baldwin v.

Alabama, 472 U.S. 372, 382 (1985), quoting, in turn,

Zant v. Stephens, 462 U.S. 862, 885 (1983)). But the

court observed that “[p]unishing a person for expressing

his views or for associating with certain people is sub-

stantially different from allowing * * * evidence of [the

defendant’s] character [to be considered] where that

character is a relevant inquiry.” J.A. 190 (quoting Com-

monwealth v. Abu-Jamal, 521 Pa. 188, 215, 555 A.2d

846, 859 (1989), cert. denied, 111 S. Ct. 215 (1990)).

Moreover, the court noted, the sentence should reflect “a

reasoned moral response to the defendant’s background

[and] character.” J.A. 190 (quoting California v. Brown,

479 U.S. 538, 545 (1987) (O’Connor, *., concurring) ).

The court concluded that because the evidence relating

to the Aryan Brotherhood and the name Abaddon was

relevant to a proper purpose of the sentencing proceed-

ing, its admission did not violate petitioner’s constitu-

tional rights. The brief presentation of evidence con-

cerning the Aryan Brotherhood “properly focused the

jury’s attention on [petitioner’s] character,” and was not

offered as an appeal to the jurors’ passions or prejudices

concerning race, religion, or political affiliation. J.A. 191.

Petitioner’s membership in the Aryan Brotherhood was

(2) the murder was committed during the commission of a burglary

or robbery: and (3) the murder was committed for pecuniary gain.

J.A. 189 n.27. See Del. Code Ann. tit. 11, § 4209(e)(1)(a), (j), (o).

8

relevant to his character because it was “indicative of

how he wanted to be identified by others” and “was char-

acteristic of his lawless nature and rejection of rehabilita-

tion during his incarceration.” Jd. at 188. Similarly, pe-

titioner’s use of the name “Abaddon” “was relevant to his

character because it is a reflection of how [petitioner]

viewed himself and how he wanted to be viewed, even

within hours after Madeline Kisner’s murder.” bid. Con-

sequently, the evidence “was necessary to explain [peti-

tioner’s] view of himself.” /d. at 191.

SUMMARY OF ARGUMENT

In Payne v. Tennessee, No. 90-5721 (June 27, 1991),

the Court held that the Constitution does not impose a

per se rule precluding capital sentencing juries from con-

sidering any evidence concerning the victim or the impact

of the crime on the victim’s family. This case presents a

similar question: whether the Constitution imposes a

per se prohibition against consideration of any of the

defendant’s beliefs or activities that could not themselves

be made the subject of criminal sanctions. In our view,

the Constitution creates no such rule.

This Court has held that the Constitution imposes only

minimal restrictions on the sentencing authority’s freedom

to consider a broad range of information in arriving at a

just sentence. The freedom to consider a wide spectrum of

relevant information at sentencing extends to capital as

well as non-capital cases. Indeed, the Court has held that

in capital cases it is especially desirable for the jury to

have as much information before it as possible when it

makes the sentencing decision.

A defendant’s attitudes, beliefs, and associations often

are highly relevant to the capital sentencing determina-

tion. The capital sentencing authority must make an in-

dividualized sentencing decision based on the character of

the individual and the circumstances of the crime. Mem-

bership in an organization—particularly an organization

such as a prison gang—can shed light on the defendant’s

9

character and may be relevant to an assessment of the

defendant’s likely future behavior, whether in prison or

in society at large.

Petitioner’s argument that a State may not introduce

evidence of the defendant’s beliefs and associations at sen-

tencing improperly extends the constitutional limitations

on criminalizing conduct or beliefs to the very different

setting of making evidentiary use of such conduct or

beliefs. For example, this Court has held that, although

the government may not prosecute a person for advocat-

ing the views of the Aryan Brotherhood, it may use the

fact of membership in that organization to impeach a

witness at trial. Likewise, a capital sentencing authority

may consider the fact that the defendant was a member

of an organization formed to start a “racial war,” even

though he could not be prosecuted for joining that organ-

ization or advocating its views.

This case is not controlled by the Court’s statement

that a statutory aggravating factor is constitutionally

invalid if it “authorizes a jury to draw adverse inferences

from conduct that is constitutionally protected.” Zant v.

Stephens, 462 U.S. 862, 885 (1983). The State has not

made membership in a prison gang a statutory aggravat-

ing factor, 7.e., one of the factors that in effect defines *he

offense of capital murder. Instead, the State has author-

ized the admission of such evidence, along with a wide

range of other non-statutory aggravating and mitigating

evidence, only after the jury has determined that the

defendant falls within the category of persons eligible for

the death penalty. At that stage of the proceeding, the

jury is free to consider a host of factors bearing on the

defendant’s character and likely future behavior to deter-

mine whether death is the appropriate sentence.

Petitioner greatly exaggerates the implications of a de-

cision affirming the judgment of the Delaware Supreme

Court. State trial and appellate courts can, and do, con-

trol the admission of irrelevant or unduly prejudicial evi-

dence in sentencing proceedings as a matter of state law.

10

And if the evidence in a particular case is so inflamma-

tory and so clearly irrelevant that it renders the proceed-

ing fundamentally unfair, the defendant can assert a

constitutional claim under the Due Process Clause.

The admission of evidence concerning petitioner’s mem-

bership in the Aryan Brotherhood did not violate the Con-

stitution. As the state courts found, that evidence was

relevant to petitioner’s character and likely future be-

havior. The presentation of the evidence was brief and

not calculated to appeal to the jury’s passions or preju-

dices. Because it provided the jury with a useful source

of insight into petitioner’s character, it was properly ad-

mitted for the jury’s consideration at sentencing.

ARGUMENT

THE CONSTITUTION DOES NOT BAR THE ADMIS-

SION OF EVIDENCE CONCERNING THE DEFEND-

ANT’S BELIEFS, ATTITUDES, AND ASSOCIATIONS

AT THE SENTENCING PHASE OF A CAPITAL TRIAL

A. The Sentencing Authority May Consider A Wide Range

Of Factors In Making The Sentencing Decision

Sentencing authorities have traditionally been accorded

virtually unlimited freedom to consider a wide range of

information in arriving at an appropriate sentence. See

Payne Vv. Tennessee, No. 90-5721 (June 27, 1991), slip

op. 10; United States v. Tucker, 404 U.S. 443, 446

(1972) (“{A] judge may appropriately conduct an in-

quiry broad in scope, largely unlimited either as to the

kind of information he may consider, or the source from

which it may come.’’).

In Williams v. New York, 337 U.S. 241 (1949), the

Court upheld the constitutionality of a state policy that

encouraged the sentencing authority “to consider informa-

tion about the convicted person’s past life, health, habits,

conduct, and mental and moral propensities.” Jd. at 245.

Justice Black’s opinion for the Court in Williams distin-

11

guished between “[t]ribunals passing on the guilt of a

defendant,” which “always have been hedged in by strict

evidentiary procedural limitations,” and sentencing au-

thorities, which have not been so restricted. Jd. at 246.

The Court observed that “both before and since the

American colonies became a nation, courts in this country

and in England practiced a policy under which a sen-

tencing judge could exercise a wide discretion in the:

sources and types of evidence used to assist him in deter-

mining the kind and extent of punishment to be imposed

within limits fixed by law.” Jbid. The Court explained

that this policy is consistent with the view “that the pun-

ishment should fit the offender and not merely the crime.”

Id. at 247. See also Wasman v. United States, 468 U.S.

559, 563-564 (1984) ; United States v. Grayson, 438 U.S.

41, 50 (1978) ; North Carolina v. Pearce, 395 U.S. 711,

723 (1969).

The sentencing authority’s freedom to consider a wide

range of information extends to capital as well as non-

capital cases. Payne v. Tennessee, supra; Williams Vv.

New York, supra. It is true that “the State must estab-

lish rational criteria that narrow the decisionmaker’s

judgment as to whether the circumstances of a particular

defendant’s case meet the threshold” for imposing the

death penalty. McCleskey v. Kemp, 481 U.S. 279, 305

(1987). But once the jury finds that a defendant meets

that threshold, it “is free to consider a myriad of factors

to determine whether death is the appropriate punish-

ment.” California v. Ramos, 463 U.S. 992, 1008 (1983).

In Barefoot v. Estelle, 463 U.S. 880 (1983), for example,

the Court held that the Constitution does not bar capital

sentencing juries from considering expert testimony pre-

dicting the defendant’s future dangerousness. The Court

observed that “the rules of evidence generally extant at

the federal and state levels anticipate that relevant, un-

privileged evidence should be admitted and its weight left

to the factfinder.” Jd. at 898. And in Gregg v. Georgia,

428 U.S. 153 (1976), the lead opinion concluded that,

12

“Tsjo long as the evidence introduced and the arguments

made at the presentence hearing do not prejudice a de-

fendant, it is preferable not to impose restrictions. We

think it desirable for the jury to have as much informa-

tion before it as possible when it makes the sentencing de-

cision.” Jd. at 203-204 (opinion of Stewart, Powell, and

Stevens, JJ). See also Jurek v. Texas, 428 U.S. 262, 276

(1976) (opinion of Stewart, Powell, and Stevens, JJ.)

(“What is essential is that the jury have before it all

possible relevant information about the individual] defend-

ant whose fate it must determine.”’) .*

B. The Constitution Does Not Erect A Per Se Barrier

Excluding From A Capital Sentencing Proceeding Rel-

evant Evidence Concerning A Defendant’s Beliefs And

Activities

Petitioner contends (Br. 17-26) that the Constitution

forbids the admission, in a sentencing proceeding, of any

evidence concerning beliefs or activities that are pro-

tected under the First Amendment. That contention,

however, ignores the important distinction between

criminalizing conduct that is protected by the First

Amendment and considering such conduct, where it is

relevant, as a factor in the sentencing determination.

Petitioner’s proposed rule would “deprive[] the State

of the full moral force of its evidence and * * * prevent

the jury from having before it all the information neces-

sary to determine the proper punishment for a first-

degree murder.” Payne, slip op. 15.‘

3In Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina

v. Gathers, 490 U.S. 805 (1989), the Court held that the Eighth

Amendment bars the admission of victim impact evidence during

the sentencing phase of a capital trial. Booth and Gathers repre-

sented a departure from the general principle that the Constitution

imposes only minimal restrictions on the sentencing authority’s free-

dom to consider a wide range of evidence. In Payne Vv. Tennessee,

supra, the Court reexamined and overruled Booth and Gathers.

4In his petition for certiorari, petitioner advanced a broad con-

tention that “general character evidence is to be offered in mitiga-

13

1. A Defendant’s Beliefs And Associations May Be

Relevant To The Capital Sentencing Decision

There is no doubt that a defendant’s attitudes, beliefs,

and associations may be highly relevant to the capital

sentencing decision. Of course, “the States, and not this

Court, retain ‘the traditional authority’ to determine

what particular evidence [in sentencing proceedings] is

relevant in the first instance.” Skipper v. South Caro-

lina, 476 U.S. 1, 11 (Powell, J., concurring in judgment)

(quoting Lockett v. Ohio, 438 U.S. 586, 604 n.12 (1978)

(plurality opinion)). In capital cases, moreover, the

Court has held that the sentencing authority is required

to consider each defendant as a “uniquely individual hu-

man being[],’”’ Woodson v. North Carolina, 428 U.S. 280,

304 (1976) (opinion of Stewart, Powell, and Stevens,

JJ.), and to arrive at “an individualized determination

on the basis of the character of the individual” as well

as “the circumstances of the crime.” Zant v. Stephens,

462 U.S. 862, 879 (1983); Eddings v. Oklahoma, 455

U.S. 104, 110-112 (1982); Lockett v. Ohio, 438 U.S. at

601-605 (plurality opinion). The capital sentencing

jury’s determination “should reflect a reasoned moral re-

sponse to the defendant’s background, character, and

crime.” Penry v. Lynaugh, 492 U.S. 302, 304 (1989)

(quoting California v. Brown, 479 U.S. 538, 545 (1987)

(O’Connor, J., concurring) ).

tion not for aggravation of the offense.” Pet. 17. In support of

that contention, petitioner relied on this Court’s conclusion that

“a State cannot preclude the sentencer from considering ‘any rele-

vant mitigating evidence’ that the defendant proffers in support of

a sentence less than death.” Payne, slip op. 12. See Eddings v.

Oklahoma, 455 U.S. 104, 110 (1982); Woodson v. North Carolina,

428 U.S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens,

JJ.). Petitioner appears to have abandoned that broad argument in

his brief on the merits. In any event, that argument is refuted by

the Court’s decision in Payne v. Tennessee, supra. In Payne, the

Court explained that the statements in Woodson and Eddings were

“not intended to describe a class of evidence that could not be re-

ceived, but a class of evidence which must be received.” Slip op. 12.

14

As the trial court recognized (J.A. 184), membership

in any organization “can be probative of character, at

least to some extent.’”’ Membership in an organization

such as the Aryan Brotherhood is highly probative of

character: it suggests the defendant’s “lawless nature

and rejection of rehabilitation during his incarceration.”

J.A. 188. Moreover, membership in an organization—

particularly a prison gang—is highly relevant to the

jury’s consideration of the defendant’s attitude toward

society and his likely future behavior in prison. See

Franklin v. Lynaugh, 487 U.S. 164, 178 (1988) (plurality

opinion) (defendant’s likely future behavior in prison is

relevant to the capital sentencing determination) ; United

States v. Grayson, 438 U.S. at 51 (“Impressions about

the individual being sentenced—[including] * * * the de-

gree to which he does or does not deem himself at war

with his society—are, for better or worse, central factors

to be appraised under our theory of ‘individualized’ sen-

tencing.”) (quoting United States v. Hendrix, 505 F.2d

1233, 1236 (2d Cir. 1974) ).

Petitioner does not contend that the evidence at issue

in this case lacks probative value as to his character and

likely future behavior, or that these factors are irrele-

vant te the capital sentencing determination. On the

contrary, he concedes that “[o]ur beliefs may shed light

on our character in all sorts of ways whether we believe

in Allah or the Pope, the NAACP or the KKK, an or-

ganized religion or atheism, the Black Hebrews or the

Aryan Brotherhood.” Pet. Br. 23. Petitioner nevertheless

argues for a constiiutional rule barring the admission

of any evidence concerning beliefs or activities if those

beliefs or activities could not themselves be made sub-

ject to criminal or civil penalties.

15

2. The Constitutional Restrictions On Criminalizing

Protected Conduct Do Not Apply Where The Evi-

dence Is Relevant To The Guilt or Penalty Phase

Of A Criminal Trial

The Constitution prevents the government from im-

posing criminal penalties for the expression of provoca-

tive ideas unless “the expression ‘is directed to inciting

or producing imminent lawless action and is likely to in-

cite or produce such action.’” Texas v. Johnson, 491

U.S. 397, 409 (1989) (quoting Brandenburg v. Ohio, 395

U.S. 444, 447 (1969)). Moreover, the government ordi-

narily may not impose criminal liability for association

with an organization absent proof of “a knowing affilia-

tion with an organization possessing unlawful aims and

goals, and a specific intent to further those illegal aims.”

Healy v. James, 408 U.S. 169, 186 (1972). See Scales v.

United States, 367 U.S. 203 (1961). Although the re-

strictions on the First Amendment rights of prisoners

might well justify a prohibition against membership in

a group such as the Aryan Brotherhood,> we assume for

purposes of this case that a prisoner’s identification with

the group, or at least his act of embracing its views,

without more, could not constitutionally be made the sub-

ject of prosecution. Thus, we do not quarrel with peti-

tioner’s contention that the State could not make it a

crime to hold or express racist views, or to express one’s

affiliation with an organization that espouses such views.°

5 This Court has recognized that “[t]he fact of confinement and

the needs of the penal institution impose limitations on the con-

stitutional rights, including those derived from the First Amend-

ment, which are implicit in incarceration.” Jones v. North Carolina

Prisoners’ Union, 433 U.S. 119, 125 (1977). See generally Thorn-

burgh v. Abbott, 490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78

(1987).

® Petitioner asserts (Pet. Br. 15) that “[t]he prosecutor did not

undertake to show that the Aryan Brotherhood, or whatever group

went by that name in any Delaware prison, had committed any un-

lawful acts.” That is not so. The State made a proffer of evidence

that the Aryan Brotherhood has illegal aims, including “the control

16

While a person may not be prosecuted for his beliefs or

associations, however, nothing in the Constitution prohi-

bits the State from making evidentiary use of beliefs or

associations when they are relevant to a criminal prose-

cution.

The distinction between criminalizing constitutionally

protected conduct and making evidentiary use of such

conduct is iilustrated by United States v. Abel, 469 U.S.

45 (1984). In Abel, the Court held that the Constitution

did not prevent the government from impeaching a de-

fense witness by showing that both the defendant and the

witness were members of the Aryan Brotherhood, and

that members were sworn to lie for each other. The

Court expressly rejected the defendant’s argument that

cases such as Scales and Brandenburg require a different

result. The Court explained (469 U.S. at 52-53) that

[t]hose cases dealt with the constitvtional require-

ments for convicting persons under the Smith Act

and state syndicalism laws * * *. [MJembership in

the Aryan Brotherhood was not offered to convict

either |the defendant or the defense witness] of a

crime, but to impeach [the witness’s] testimony.

* * * For purposes of the law of evidence the jury

may be permitted to draw an inference of subscrip-

tion to the tenets of the organization from member-

ship alone, even though such an inference would not

be sufficient to convict beyond a reasonable doubt in

a criminal prosecution.

Abel holds that the prosecution may introduce evi-

dence, over a First Amendment challenge, of the defend-

ant’s beliefs and his affiliation with the Aryan Brother-

hood, where it is relevant to a witness’s credibility. The

of drugs within the prison institutions” and “violent escape at-

tempts,” and that “full-fledged” membership in the Aryan Brother-

hood (known as “earning your bones’) “requires either a murder

or an attempted murder of another inmate.” J.A. 33, 37. Moreover,

the inmates who broke out of prison with petitioner were fellow

members of the Aryan Brotherhood. See id. at 39 (inmates Nave,

Irwin, and McCoy members of Brotherhood).

17

Same principle applies to the admission of similar evi-

dence, over a similar First Amendment challenge, when

the evidence is relevant to matters the State has put in

issue in a sentencing proceeding, such as the defendant’s

character and likely future behavior.

In Barclay v. Florida, 463 U.S. 939 (1983), the de

fendants were members of a group called the Black

Liberation Army. The sentencing judge found that the

purpose of the group was “to start a revolution and a

racial war.” Id. at 942. The defendant and other mem-

bers of the organization killed a hitchhiker in an effort

to start the “racial war.” The Court did not suggest that

defendant’s membership in the Black Liberation Army or

his racial views were unprotected by tne First Amend-

ment. Nevertheless, the Court held that it was proper for

the sentencer to consider the defendant’s racial animus

toward the victim as a factor bearing on the sentencing

decision. The plurality explained that “[i]t is entirely

fitting for the moral, factual, and legal judgment of

judges and juries to play a meaningful role in sentenc-

ing.” Jd. at 950. See also id. at 970 & n.18 (Stevens, J.,

concurring in judgment) (“judge’s candid exposition of

his deeply felt concern about racial crimes * * * does not

undermine the legitimacy of the ultimate sentence, * * *

because it pertained * * * to the trial judge’s exercise of

his sentencing discretion.” ).

This case differs from Barclay in that the evidence did

not show that petitioner’s membership in the Aryan

Brotherhood was related to the murder itself. But this

Court has recognized that the defendant’s character, as

well as the circumstances of the crime, can constitution-

ally be deemed relevant to the sentencing determination,

and petitioner’s membership in the Aryan Brotherhood

unquestionably was relevant to his character and likely

future behavior. Accordingly, there is no basis for a con-

stitutional distinction between cases such as Barclay,

where the evidence is relevant to the circumstances of the

18

crime, and this case, where the evidence is relevant to

other material issues at sentencing.

Barclay and Abel refute petitioner’s assertion that the

Constitution bars the evidentiary use of beliefs and ac-

tivities that could not themselves be made the subjects

of criminal sanctions. As the Pennsylvania Supreme

Court noted in response to a similar claim, “[p]unishing

a person for expressing his views or for associating with

certain people is substantially different from allowing his

statements to be used for impeachment or to be consid-

ered as evidence of his character where that character is

a relevant inquiry.” Commonwealth v. Abu-Jamal, 521

Pa. at 215, 555 A.2d at 859.

Petitioner repeatedly relies (Pet. Br. 13, 14, 16, 17,

26) on this Court’s suggestion in Zant v. Stephens, 462

U.S. at 885, that a statutory aggravating factor is con-

stitutionally invalid if it “authorizes a jury to draw ad-

verse inferences from conduct that is constitutionally

protected.” As examples of constitutionally protected

conduct, the Court in Zant listed “the display of a red

flag, ef. Stromberg v. California, [283 U.S. 359 (1931) ],

for] the expression of unpopular political views, cf.

Terminiello v. Chicago, 337 U.S. 1 (1949).” Contrary to

petitioner’s assertions, those statements in Zant do not

control this case.

As noted above, this Court has identified two distinct

phases of the capital sentencing process. The initial

phase establishes “a required threshold below which the

death penalty cannot be imposed.” McCleskey v. Kemp,

481 U.S. 279, 305 (1987). At that stage, the State must

establish “rational criteria that narrow the decision-

maker’s judgment as to whether the circumstances of a

particular defendant’s case meet the threshoid.” /bid.

Thus, the selection of statutory aggravating factors in

effect defines the offense of capital murder. Once the

jury finds that the defendant falls within the legislatively

defined category of persons eligible for the death penalty,

however, “the jury * * * is free to consider a myriad of

19

factors to determine whether death is the appropriate

punishment.” California v. Ramos, 463 U.S. 992, 1008

(1983).

Delaware has not made membership in a racist gang

a statutory aggravating factor that qualifies a defendant

for the death penalty. Thus, Delaware has not made

“constitutionally protected conduct an aggravating cir-

cumstance, thereby ‘elevating’ a crime to the status of a

capital offense on the basis of impermissible factors.”

Commonwealth v. Abu-Jamal, 521 Pa. at 215, 555 A.2d

at 859. It is only at the final stage of the capital sen-

tencing proceeding, where the jury must weigh a “myr-

iad” of non-statutory mitigating and aggravating evi-

dence, that evidence such as petitioner’s gang member-

ship may be considered in aggravation. That approach

to the reasoned, moral judgment required of a capital

sentencing authority does not offend the Constitution.

To be sure, the jury’s consideration of a defendant’s

constitutionally protected beliefs or associations could

conceivably be the factor that tips the balance in favor

of the death penalty. But the same could be true of any

number of other factors that could not in themselves sub-

ject the defendant to prosecution or qualify him for the

death penalty. Suppose, for example, that a defendant

wrote an essay expressing his belief that all prison

guards deserve to be murdered by the inmates. The State

could not make it a crime to hold or express such an

opinion, absent a clear and present danger of inciting

prison violence. But it strains common sense to assert

that a sentencing authority could not consider the essay

as some evidence of the defendant’s character and future

dangerousness. To take another example, a person may

not be prosecuted for expressing contempt for others, but

where the defendant expresses contempt for his victim

and the victim’s family members, rather than remorse,

the defendant’s attitude may surely be taken into account

at sentencing. Likewise, a person may not be prosecuted

for expressing admiration for, and a desire to emulate,

20

a particularly violent killer, but such expressions are

surely within the competence of a sentencing hearing at

which the defendant’s character is in issue.

The same analysis is applicable to consideration of the

defendant’s prior record. For example, a prior conviction

of rape might be the factor that persuades the jury that

the defendant’s record is so bad that he should be sen-

tenced to death. That would be permissible, even though

the Court has held that imposition of the death penalty

as the punishment for the crime of rape would be uncon-

stitutional. See Coker v. Georgia, 433 U.S. 584 (1977).

The same analysis would apply even if it turned out that

a single shoplifting conviction tipped the balance in a

close case in favor of the death penalty for a defendant

convicted of murder. That is so because, even though it

could be said that the death penalty was imposed “as a

result of” the shoplifting conviction, it was not imposed

“for” the offense of shoplifting, but for the murder.

Likewise, although it is conceivable that the defendant in

Abel was convicted because the government successfully

impeached the defendant’s witness by showing that he

and the defendant were both members of the Aryan

Brotherhood, the defendant was not convicted “for” be-

longing to the Aryan Brotherhood. Under the same rea-

soning, it is clear that the death penalty in this case was

not imposed “for” petitioner’s membership in the Aryan

Brotherhood, but for murder.

C. A Per Se Rule Would Distort The Sentencing Process

And Would Be Difficult To Apply

This Court has held that a sentencer in a capital case

may not be prevented from considering, as a mitigating

factor, any aspect of a defendant’s character or record

that the defendant proffers as a basis for a sentence less

than death. Penry v. Lynaugh, 492 U.S. 302, 317

(1989) ; Lockett v. Ohio, 438 U.S. 586, 604 (1978). For

example, the defendant may present evidence that he is

devoutly religious, see Franklin v. Lynaugh, 487 U.S.

21

164, 186 (1988) (O’Connor, J., concurring in the judg-

ment) (“Evidence of * * * religious devotion might

demonstrate positive character traits that might miti-

gate against the death penalty.”); id. at 190 (Stevens,

J., dissenting) (“Evidence of * * * regular church at-

tendance” is relevant to character). In light of the de-

fendant’s unrestricted right to present mitigating evi-

dence, a rule of the sort that petitioner urges, which

would forbid the prosecution from presenting any evi-

dence concerning the defendant’s protected activities or

beliefs, would distort the presentation of evidence to sen-

tencing juries and undermine the rationality of their

sentencing determinations.

If only the defendant could introduce evidence of his

beliefs and associations, the jury would often receive an

incomplete and unbalanced account of the defendant’s

character. In Payne, the Court rejected a similar rule

excluding victim impact evidence, observing that “justice,

though due to the accused, is due to the accuser also.”

Slip op. 17 (quoting Snyder v. Massachusetts, 291 U.S.

97, 122 (1934)). Indeed, if petitioner’s First Amend-

ment rule were adopted, it would cast doubt on the con-

stitutionality of the principle that defendants are free to

proffer any relevant mitigating evidence and in effect

may be given “credit” by the sentencing authority for

joining organizations and embracing beliefs that the sen-

tencing authority considers to be worthy. If the First

Amendment forbids “penalizing” defendants for anti-

social beliefs by permitting the State to introduce evi-

dence of those beliefs at sentencing, it must also forbid

selectively “rewarding” defendants who hold views that

are widely admired, thereby effectively penalizing those

defendants who do not. See Rutan v. Republican Party

of Illinois, 110 S. Ct. 2729 (1990) (promotions based on

political affiliation impermissibly infringe public employ-

ees’ First Amendment rights).

Even if the First Amendment rule proposed by peti-

tioner could be limited to evidence offered by the prose-

cution, problems of application would still make that rule

22

unmanageable. It is undisputed that the prosecution is

entitled to rebut the defendant’s mitigating evidence,

even if it concerns beliefs or activities that could not be

made subject to criminal sanctions. See Payne v. Tennes-

see, slip op. 4-5 (Stevens, J., dissenting) (“Just as the

defendant is entitled to introduce any relevant mitigating

evidence, so the State may rebut that evidence.”). Peti-

tioner appears to concede as much. See Pet. 20-21 (“If

the defendant has offered ‘character’ evidence to the effect

that he was a life-long member of the NAACP * * * and

believed in their goals, evidence of an actual association

with an organization with established antithetical goals,

conceivably may have been proper rebuttal.”). Yet, there

is no persuasive reason to draw a constitutional line be-

tween evidence introduced in rebuttal and evidence intro-

duced by the prosecution in the first instance.

The sentencing authority’s freedom to consider a wide

spectrum of relevant evidence has never turned on

whether the defendant agrees to allow the sentencer to

consider such evidence. Moreover, the distinction between

rebuttal and non-rebuttal evidence is far from clear. As

petitioner’s own example demonstrates, the prosecution

could rebut evidence that petitioner was a life-long mem-

ber of the NAACP by showing either that petitioner did

not in fact belong to the NAACP, or that he belonged to

an organization with inconsistent goals, such as the

Aryan Brotherhood. In this case, petitioner adduced evi-

dence that he had attended meetings of Alcoholics Anony-

mous in prison. That evidence was relevant not only to

the narrow issue whether petitioner was making a sin-

cere effort to overcome his alcohol and drug problems, but

also to the broader issue of petitioner’s likely future be-

havior as a prisoner and to his overall attitude toward

his role in society. The State’s evidence that petitioner

belonged to the Aryan Brotherhood rebutted petitioner’s

broader suggestion that he was making constructive use

of his time in prison and viewed it as important to

23

address problems that may have been associated with

his life in crime.’

Petitioner’s proposed rule, like the rule rejected in

Payne, would also create an unworkable standard of con-

stitutional relevance. The range of speech and expressive

conduct subject to protection under the First Amendment

is quite broad. Questions inevitably would arise as to

whether various types of evidence or prosecutorial argu-

ment risk imposing the death sentence “because of” the

deefndant’s exercise of his First Amendment rights. Cf.

South Carolina v. Gathers, 490 U.S. at 813 (O’Connor, J.,

dissenting). In addition, confusion would arise where

factual details that would be inadmissible under peti-

tioner’s per se rule were disclosed during the guilt phase

of the trial. See Payne v. Tennessee, slip op. 6 (Souter,

J., concurring).

Some of the acts at issue in this case provide a good

illustration of the sort of confusion that petitioner’s pro-

posed rule would engender. A question would arise, for

example, whether petitioner’s act of painting a swastika

on his cell wall could be introduced only to show a willing-

ness to deface prison property, and not to suggest ad-

herence to neo-Nazi beliefs, or even to suggest a more

7 The unworkable nature of an aes proposed distinction be-

tween rebuttal use and other uses of evidence of a defendant’s as-

sociaitons and beliefs can be illustrated by the following example:

Suppose state law created a rebuttable presumption that capital de-

fendants are of good character and likely to be model prisoners.

Consistent with petitioner’s “rebuttal” theory, the State would ap-

parently be free to rebut that presumption, just as it is free to rebut

mitigating evidence introduced by the defendant. And if a State

can admit evidence of the sort at issue in this case to rebut a pre-

sumption of good character, it should be equally free to admit such

evidence to ensure that the jury will not assume, based on the

absence of evidence to the contrary, that the defendant’s adjustment

to prison has been satisfactory. Even if a distinction such as peti-

tioner proposes could be made workable as a matter of state evi-

dentiary law, there is nothing in the Constitution that suggests

that the distinction must be maintained as a matter of constitutional

compulsion.

24

general attitude of defiance toward prison authorities.

Another question could arise whether, for example, the

State could offer evidence that petitioner chose to associate

with a particularly violent and disruptive group of in-

mates in the prison, but could not introduce evidence that

petitioner and those inmates shared the belief that vio-

lence in prison was appropriate. In sum, adoption of peti-

tioner’s position would ensure that questions of First

Amendment protection would arise in virtually every case

in which a State sought to offer evidence of the defend-

ant’s statements or associations in an effort to prove his

character for purposes of a capital sentencing proceeding.

D. The Absence of a Per Se Rule Barring Admission of

Evidence Concerning Beliefs and Associations Does

Not Jmply That Such Evidence Is Always Admissible

Petitioner asserts (Pet. Br. 23-24) that if the judgment

in this case is affirmed, prosecutors will be free to argue

that defendants should receive the death penalty because

they support unpopular political figures or causes, hold

unpopular religious views, or engage in unpopular forms

of political expression such as flag-burning. Those con-

cerns are exaggerated and can be dealt with by means

other than a per se constitutional] rule barring all evi-

dence of beliefs and associations.

First, factors such as the defendant’s race, nationality,

political affiliation, and religious beliefs and activities are

ordinarily deemed irrelevant to the sentencing determina-

tion and are excluded from consideration on that ground.

See Zant v. Stephens, 462 U.S. at 885; United States v.

Bakker, 925 F.2d 728, 740 (4th Cir. 1991) ; United States

Vv. Bangert, 645 F.2d 1297, 1308 (8th Cir. 1981). Other

factors, including evidence of the defendant’s statements

or his membership in particular organizations, may be

subject to exclusion on the ground that their prejudicial

impact outweighs their probative value. In this case, for

example, the trial court weighed the prejudicial impact of

the State’s evidence against its probative value, and ruled

25

that it would exclude some of the State’s evidence. See

J.A. 25, 58, 186. When the trial court does not exclude

the evidence, it may give the jury a limiting instruction,

guiding the jury in its use of the evidence. And, of

course, defense counsel is free to argue that the jury

should give little or no weight to the prosecution’s evi-

dence.

Second, the absence of a per se constitutional rule bar-

ring admission of any aggravating evidence concerning

the defendant’s associations and beliefs does not imply

that the admission of such evidence could never violate

the Constitution. While some beliefs and associations can

fairly be said to reflect criminal propensity, a court must

exclude evidence of beliefs and associations that do not

reflect bad character, but are merely unpopular in the

community. The admission of such evidence that preju-

dices the defendant and is clearly irrelevant to a proper

sentencing determination may render the sentencing pro-

ceeding fundamentally unfair, in which case the defendant

may pursue a claim under the Due Process Clause. See

Payne, slip op. 15; Darden v. Wainwright, 477 U.S. 168,

179-183 (1986) ; Beck v. Alabama, 447 U.S. 625, 637-638

(1980).

The fact that it is sometimes difficult to draw a distinc-

tion »etween beliefs and associations that reflect bad char-

acter and those that are merely unpopular does not justify

the creation of a constitutional rule barring the admission

of all such evidence. Nor is the risk of jury misuse of

such evidence sufficiently grave as to require that the

jury be deprived of the evidence even when it may be of

great value in making the sentencing decision. In capital

cases, juries must make a moral judgment based in sig-

nificant part on the character of the defendant. Inevit-

ably, there is some risk that a jury confronted with this

complex and demanding task will consider irrelevant fac-

tors, or will allow passion or prejudice to supplant a rea-

soned moral judgment. But just as that risk does not

bar the prosecution from offering “a glimpse of the life”

26

which the defendant “chose to extinguish,” Payne, slip op.

12, so too it does not bar the prosecution from offering the

jury a glimpse of the character of the defendant, whose

life the jury has in its hands.

E. The Evidence And Argument At Issue In This Case

Did Not Violate Petitioner’s Constitutional Rights

The Constitution does not require exclusion of the evi-

dence at issue in this case. Besides being relevant to his

character and likely future behavior, the State’s evidence

was presented in a brief and noninflammatory fashion.

Petitioner does not contend that he used the name

“Abaddon” in connection with any religious belief or

practice. Petitioner’s references to himself as “Abaddon”

were in effect statements that he regarded himself, and

wished others to regard him, as an evil man. The Consti-

tution does not shield a defendant against the State’s use

of such self-revelatory statements at the sentencing phase

of a criminal] trial.

The admission of the Aryan Brotherhood evidence was

also constitutional. Even assuming that petitioner prop-

erly preserved his objections to the admission of that evi-

dence,* the evidence was highly relevant to petitioner’s

character and likely future behavior in prison. As the

Delaware Supreme Court explained, petitioner’s “affilia-

8 Petitioner agreed to the admission of a brief stipulation con-

cerning the Aryan Brotherhood in order to prevent the jury from

hearing an expert witness’s detailed testimony concerning that

organization. Petitioner is now seeking to repudiate that agreement.

In the Delaware Supreme Court, petitioner argued that he “was

‘forced’ to enter the stipulation in order to guarantee that a rela-

tively ‘sterile’ description of the Aryan Brotherhood would be pre-

sented to the jury.” J.A. 185. But petitioner, like all defendants,

had the option of preserving his objections for appeal. Instead, he

entered into a compromise agreement with the prosecution in hopes

of improving his chances at trial. It is true that the Delaware

Supreme Court considered and rejected petitioner’s constitutional

argument on the merits. But the Delaware court did not hold that

petitioner had preserved his constitutional objection, and we think

it doubtful that he did.

27

tion with this type of organization was not only indica-

tive of how he identified himself and how he wanted to

be identified by others, but * * * was characteristic of

his lawless nature and rejection of rehabilitation during

his incarceration.” J.A. 188. The State’s brief, non-

inflammatory presentation of that probative evidence

regarding petitioner’s character did not violate the

Constitution.

CONCLUSION

The judgment of the Supreme Court of Delaware

should be affirmed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

JULY 1991

W ov. S. GOVERNMENT PRINTING orrice; 1991 282061 20647