Amicus Curiae Brief — Sawyer v. Whitley
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3 NO)
i No. 91-6382
ee
we IN THE
és
F Supreme Court of the Gnited States
i OCTOBER TERM, 1991
ROBERT WAYNE SAWYER,
en Petitioner,
Be
3 vs
bs.
%. JOHN P. WHITLEY, Warden,
= Louisiana State Penitentiary,
a Respondent.
%
¥
xs On Writ of Certiorari to the United States
be. Court of Appeals for the Fifth Circuit
2 BRIEF AMICUS CURIAE OF THE
& CRIMINAL JUSTICE LEGAL FOUNDATION
3 IN SUPPORT OF RESPONDENT
&
KENT S. SCHEIDEGGER
ng 4 CHARLES L. HoBsoNn*
; : Criminal Justice Legal Fdn.
, * 2131 L Street (95816)
is Post Office Box 1199
: Sacramento, California 95812
Telephone: (916) 446-0345
s | Attorneys for Amicus Curiae
é Criminal Justice Legal Foundation
€
be *Attorney of Record . -
QUESTIONS PRESENTED
1. Under what standard may a death sentence be a “fun-
damental miscarriage of justice” under Murray v. Carrier, 477
U.S. 478 (1986)? |
2. Is the proper standard determined by the petitioner’s
eligibility for the death penalty or by reexamining the “accu-
racy” of his sentence?
(i)
TABLE OF CONTENTS
PID cccesccccccccccccccccccccccees i
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EEE ig Soc cccccccccccceccesccesce 1
Summary of facts and case ...... 6.66 c ccc eee ees 2
Summary of argument ........... 666 e eee ee eees 2
EPPO CPPTTTETELERTLELEREL EERE 3
I
In the penalty phase, fundamental miscarriage of justice
occurs only when the sentencer cannot legally impose
RE ow ccccescccccccccccccccccss 3
MEE. no ccccccceccccesceces 4
B. The need for a standard.............. 8
C. The death penalty .............5555: 10
D. The eligibility standard ............. 14
Il
Defendant's proposed standard is inappropriate ....... 23
DU PUUUEUCRGEGGebGpecececccccccccccocece 30
. o
(iii)
iv
TABLE OF AUTHORITIES
Cites
Amadeo v. Zant, 486 U. S. 214, 100 L. Ed. 2d 249,
BOS G. Ce. BF7F7E CITED ccc cccccccccccceccccces 24
Andres v. United States, 333 U. S. 740, 92 L. Ed. 1055,
GBS. Ce. GED CIBER) 0 wc ccccccccccsccccccsecss 10
Barclay v. Florida, 463 U. S. 939, 77 L. Ed. 2d 1134,
SED G. Ge, BEB CITED ccc ccccscccccccsesccecs 14
Barefoot v. Estelle, 463 U. S. 880, 77 L. Ed. 2d 1090,
SED B. Ge, Be GID occ cccccccccescccsccess 5
Blystone v. Pennsylvania, 108 L. Ed. 2d 255,
110 S. Ct. 1078 CRUE Sd ecccceccceccscccceess 26
Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469,
TOD Ga Bee Gee cc ccccccccccscscces 4, 9, 15, 30
Caldwell v. Mississippi, 472 U. S. 320, 86 L. Ed. 2d 231,
BOS B. Ce, BERS CITED oc cc cccrcccccccsscccccss 25
Clemons v. Mississippi, 108 L. Ed. 2d 725,
BOD G. Ce, BOGE CIBTED ccc ccccccccccccccccese 12
Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982,
OF &. Co, Bae GROVE occ cccccesecccccess 13, 17, 19
Coleman v. Thompson, 115 L. Ed. 2d 640,
BES TGR SGD cccccccevsccccapeseseces 6
Dugger v. Adams, 489 U. S. 401, 103 L. Ed. 2d 435,
109 S. Ct. 1211 (1989) .. 0.6... eee 7, 8, 20, 22, 25
Duncan v. Louisiana, 391 U. S. 145, 20 L. ue. hans 491,
88 S. Ct. 1444 (1968)... 2... 6 eee te gececcece 3
Enmund v. Florida, 458 U. S. 782, 73 L. Ed. Zd 1140,
BG: Gi BPG ov i vncecccccsaciocacce: 20
Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,
ee rrr 4, 9, 20
Ford v. Wainwright, 477 U. S. 399, 91 L. Ed. 2d 335,
Se ED oe bensntanedesdbees 13, 17, 20
Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,
SS DCE, GeO GFE cc cc ccccccccscces 3, 10, 18, 19
Godfrey v. Georgia, 446 U. S. 420, 64 L. Ed. 2d 398,
Baw ©. CR, FISD COTE 2 cc cccccccccccs 11, 12, 17, 26
Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,
Se ED cco wecceuswestedwrecees 11, 18
Haring v. Prosise, 462 U. S. 306, 76 L. Ed. 2d 595,
PPE Sibi sc awscbouesatacauueuséeses 23
Hopkinson v. Shillinger, 888 F. 2d 1286 (CA10 1989) ...
In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,
bce cisdiccalecdsdicsess 26
Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,
a ees 27
Jacobellis v. Ohio, 378 U. S. 184, 12 L. Ed. 2d 793,
Se 6h cu ceveee venes60c06e06s 9
Johnson v. Singletary, 938 F. 2d 1166
eer S 8, 10, 14, 15, 24, 27, 28
Kuhimann v. Wilson, 477 U. S. 436, 91 L. Ed. 2d 364,
ey Ge ED 66060 cocteucsdeedéccs 5, 7,8
Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,
OG Gh RII og vc cnnivvcvccccecess 12, 26
Maynard v. Cartwright, 486 U. S. 356, 100 L. Ed. 2d 372,
108 S. Ct. 1853 (1988) ..... 0.00... 0 12, J6, 18, 19
McCleskey v. Kemp. 481 U. S. 279, 95 L. Ed. 2d 262, *
[Try oan tataaaet 13, 27
vi
McCleskey v. Zant, 113 L. Ed. 2d 517,
111 S. Ct. 1454 (1991) .......44.. 4, 5, 6, 7, 9, 15, 29
McGautha v. California, 402 U. S. 183, 28 L. Ed. 2d 711,
OBE Ge, SERS GIG ED occ cc ccccccecccccscccves 10
McKoy v. North Carolina, 108 L. Ed. 2d 369,
SED G. Ge, GEy GCIBEED cc cccccccscscccccccce 12, 26
Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,
106 S. Ct. 2639 (1986) .........4.. 4-9, 18, 20, 22, 24
Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,
Ss Gh ED cs cccccecseccccccccces 13, 17
Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,
ee Ec cbedcdcdvcccseaceccesece 10
Pulley v. Harris, 465 U. S. 37, 79 L. Ed. 2d 29,
Bee he Gh PE GED ccc ccd aeccecvccccccesccs 22
Reed v. Ross, 468 U. S. 1, 82 L. Ed. 2d 1,
Be I CED Sc ocdcccoccccsocoveseece 6
Sawyer v. Smith, 111 L. Ed. 2d 193,
DE CE civic vosncsocencecceces 2
Sawyer v. Whitley, 945 F.2d 812 (CAS 1991) ....... 15, 23
Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,
106 S. Ct. 2661 (1986) ..........645. 7, 8, 20, 21, 24
Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,
PPG EEE occccccvoncccosccecoevectec: 4
Strickland v. Washington, 466 U. S. 668, 80 L. Ed. 2d 674,
BP NED ccc ccvescccocccoocese 27, 28
Sumner v. Shuman, 483 U. S. 66, 97 L. Ed. 2d 56,
Se EE APEEEEED cccencevesccesccceveses 12
Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,
109 S. Ct. 1060 (1989) 2. eee eee, 5
vii
Thompson v. Oklahoma, 487 U. S. 815, 101 L. Ed. 2d 702,
Se ae GE, Bee CUOUED occ ccccccccccececcess 13, 17
Tison v. Arizona, 481 U. S. 137, 95 L. Ed. 2d 127,
yg 13, 17
United States v. Frady, 456 U. S. 152, 71 L. Ed. 2d 816,
cr soe cdwadnuséebebetces 6
Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,
PE En ar 28
Walton v. Arizona, 111 L. Ed. 2d 511,
te TE cin cncauasiueecdes 11, 12, 18
Woodson v. North Carolina, 428 U. 8. 280, 49 L. Ed. 2d 944,
NE ot eee eee ekg. 11, 26, 29
Zant v. Stephens, 462 U. S. 862, 77 L. Ed. 2d 235,
Et dc pedcedstédausnevns 17, 21
Rules of Court
Rules Governing Section 2254 Cases in the United States
ee ED cca nicnvnecceéesessics 4
United States Statutes
I on 0h nr er 13
an 13
State Statutes
Cal. Penal Code § 19D. 1(a1) 0... 0. cece ccc cc cceees 16
ee PU GP UD cc ccccccccccccccéccctceen 16
ld 21
Treatise
W. Blackstone, Commentaries ...................... 3
viii
Miscellaneous
Black’s Law Dictionary 708 (Sth ed. 1979) ............. 8
The Federalist No. 51 (Madison) (Rossiter ed. 1961). .... 3
Frankfurter, Some Reflections on the Reading of Statutes,
47 Colum. L. Rev. 527 (1947) ........50 eee eues 18
Friendly, /s Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142
SUUUEED SeSeccccccedevsecedoceccoeesosss 5, 7, 20
Scheidegger, Capital Punishment in 1987: The Puzzle Nears
Completion, 15 W. St. L. Rev. 95 (1987) ......... 10
U. S. Bureau of Justice Statistics,
Capital Punishment 1990... 23
U. S. Bureau of Justice Statistics, Sourcebook of Criminal
PEED occueedessesececeseeses 23
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1991
ROBERT WAYNE SAWYER,
Petitioner,
VS.
JOHN P. WirrLey, Warden,
Louisiana State Penitentiary,
Respondent.
BRIEF AMICUS CURIAE OF THE
CRIMINAL JUSTICE LEGAL FOUNDATION
IN SUPPORT OF RESPONDENT
INTEREST OF AMICUS CURIAE
The Criminal Justice Legal Foundation (CJLF)' is a non-
profit California corporation organized to participate in litiga-
tion relating to the criminal justice system as it affects the
public interest. CJLF seeks to bring the due process protec-
tion of the accused into balance with the rights of the victim
and of society to rapid, efficient, and reliable determination of
guilt and swift execution of punishment.
The present case involves the extended relitigation of the
legality of a proceeding conducted many years ago, involving
no substantial question of whether petitioner is actually guilty.
|. CJL has written consent of the parties to file this brief,
Such unnecessary relitigation is contrary to the rights of vic-
tims and society which CJLF was formed to advance.
SUMMARY OF FACTS AND CASE
On September 29, 1979, defendant and Charles Lane tor-
tured to death Frances Arwood. The killers repeatedly beat
her, scalded her with boiling water, dunked her in a bathtub,
and, according to the testimony at the penalty phase, defend-
ant “poured lighter fluid on the unconscious victim, particular-
ly her torso and genital area, and set the lighter fluid afire.”
Sawyer v. Smith, 111 L. Ed. 2d 193, 203, 110 S. Ct. 2822, 2825
(1990). Defendant “told Lane that he had done this to show
‘just how cruel he could be.’ ” Jbid. es
On September 19, 1980, defendant was convicted and sen-
tenced to death. His current claims were not made until the
second round of habeas petitions. These claims have been
rejected by the district court and the court of appeals. Pet. 3-
5.
SUMMARY OF ARGUMENT
The fundamental miscarriage of justice exception to the
cause and prejudice test must remain an exception and not the
rule. If the exception is interpreted too broadly or subjective-
ly, it would overwhelm the federal courts in a flood of succes-
sive petitions, and violate the integrity and the finality of state
judgments.
A death penalty can be a fundamental miscarriage of justice
only if defendant was not eligible for the death sentenge. Eli-
gibility is reserved for those who have committed murder with
at least one statutory aggravating circumstance and whose
status does not otherwise render them ineligible for the death
penalty. Eligibility for the death penalty can be determined by
narrow, Objective criteria, thus ensuring that a fundamental
miscarriage of justice remains the exception and not the rule.
While narrow and objective, the eligibility test is still fair. It
preserves those rights most fundamental to the death sentenc-
ing scheme. The method for determining eligibility for the
death penalty, requiring a finding of at least one statutory
aggravating factor, serves the primary interests that motivated
this Court’s decision in Furman v. Georgia, 408 U. S. 238
(1972). Preserving the status-based exemptions prevents
barbarous executions from being carried out.
Defendant’s alternative, by addressing the accuracy of the
sentencer’s finding in light of the alleged errors is fatally sub-
jective. The sentencer is given broad access to evidence and
substantial discretion to impose the death sentence. Any
attempt to gauge the accuracy of the weighing of aggravating
and mitigating circumstances is no more than speculation.
This will in turn lead to an excessively individual interpretation
of the Constitution, massive delay, and a standard too loose to
protect the state’s interest against successive petitions.
ARGUMENT
I. In the Penalty Phase, Fundamental Miscarriage
of Justice Occurs Only When the Sentencer Cannot
Legally Impose the Death Penalty.
“Justice is the end of government. It is the end of civil
society. It has been and even will be pursued until it has been
obtained, or until liberty be lost in the pursuit.” The Federalist
No. 51, at 324 (Madison) (Rossiter ed. 1961).
To achieve this goal, we have established an elaborate sys-
tem of checks on government power. This is most evident in
the criminal law. The accused criminal is entitled to an im-
pressive variety of rights. See Duncan v. Louisiana, 391 U. S.
145, 148 (1968). The protections built into our criminal justice
system help insure that the accused will be treated unjustly
only in the rarest of circumstances. Cf. 4 W. Blackstone,
Commentaries *352.
4
“But justice, though due to the accused, is due to the ac-
cuser also.” Snyder v. Messachusetts, 291 U.S. 97, 122 (1934).
It has been over 12 years since defendant and his accomplice
murdered Frances Arwood and over 11 years since his convic-
tion. No court that has addressed the substance of his claims
has accepted them. See Pet. 3-5. Yet his sentenceshas not
been executed. This delay is the only miscarriage of justice in
the present case. Accepting defendant’s argument would only
compound this miscarriage and eviscerate the finality of state
convictions. Justice demands rejecting his arguments.
A. The Exception.
When evaluating defendant’s claims, the single most impor-
tant issue to keep in mind is that they either were or should
have been litigated in his first round of habeas corpus. The
genera! rule is that successive petitions must be dismissed. See
Rules Governing Section 2254 Cases in the United States
District Courts, Rule 9(b). To preserve the rule against abu-
sive or successive claims, any exceptions truly must be excep-
tions.
“Federal collateral litigation places a heavy burden on
scarce federal judicial resources, and threatens the capacity of
the system to resolve primary disputes.” McCleskey v. Zant,
113 L. Ed. 2d 517, 543, 111 S. Ct. 1454, 1469 (1991). This is
not a new problem. Since the genesis of modern habeas cor-
pus, the fear of overwhelming the federal judiciary with habeas
claims has been present. See Brown v. Allen, 344 U.S. 443,
536, n. 8 (1953) (Jackson, J., dissenting). This problem has
only gotten worse since Justice Jackson’s prophecy.
States bear an even heavier burden. They must bear the
financial burden of defending their convictions in federal
court. Mére importantly, habeas corpus attacks the integrity
of a'state’s criminal justice system. Collateral attack in federal
courts frustrates “ ‘both the States’ sovereign power to punish
offenders and their good-faith attempts to honor constitution-
al rights.’ ” Murray v. Carrier, 477 U. S. 478, 487 (1986) (quot-
ing Engle v. Isaac, 456 U.S. 107, 128 (1982)). Perhaps the
greatest burden habeas places upon a state is the lack of finali-
ty. If a prisoner is allowed unlimited attacks upon his convic-
tion, then it never truly becomes final. “Without finality, the
criminal law is deprived of much of its deterrent effect.”
Teague v. Lane, 489 U. S. 288, 309 (1989) (plurality). The
delay inherent in habeas corpus adds another cost to the state.
Retrial after a successful petition is at best difficult because of
the usually long delay between conviction and successful
habeas attack. “[W]hen a habeas petitioner succeeds in ob-
taining a new trial, the ‘erosion of memory’ and ‘dispersion of
witnesses’ that occur with the passage of time,” prejudice the
government and diminish the chances of a reliable criminal
adjudication. McCleskey, supra, 113 L. Ed. 2d, at 542, 111
S. Ct., at 1468 (quoting Kuhlmann v. Wilson, 477 U. S. 436,
453 (1986) (plurality)). The cost of delay is particularly great
in capital cases, as execution of the sentence cannot begin
until the end of the proceedings is reached. See Barefoot v.
Estelle, 463 U. S. 880, 888 (1983).
The bar against successive petitions is a guardian of these
interests. If prisoners were allowed unlimited collateral at-
tacks upon their convictions, the federal courts could grind to
a halt, snowed in under a blizzard of worthless petitions. So
long as they are permitted, a prisoner has nothing to lose by
making multiple petitions—he has nothing better to do and he
always has a chance to win. See Friendly, /s Innocence Irrele-
vant? Collateral Attack on Criminal Judgments, 38
U. Chi. L. Rev. 142, 150 (1970).
The cost of unlimited petitions is even greater for the state.
If there was no control over successive petitions, then no state
conviction could be considered final. Placing state convictions
under perpetual federal review blocks the states’ efforts to
punish offenders. Carrier, supra, 477 U.S., at 487. “Our fed-
eral system recognizes the independent power of a State to
articulate societal norms through criminal law; but the power
of a state to pass laws means little if the state cannot enforce
them.” McCleskey, supra, 113 L. Ed. 2d, at 543, 111 S. Ct., at
1469.
As befits such an important rule, this doctrine has only two
narrow exceptions. If there is cause for not raising a claim in a
6
prior petition and resulting prejudice, then the claim may be
heard. See McCleskey, supra, 113 L. Ed. 2d, at 545, 111 S. Ct.,
at 1470-1471. This is a difficult standard to meet. To meet this
test, any error must have “worked to [petitioner’s] actual and
substantial disadvantage, infecting his entire trial with error of
‘constitutional dimensions.” United States v. Frady, 456 U. S.
" 152, 170 (1982) (emphasis added). Showing cause is similarly
difficult. Ineffective assistance of habeas counsel does not
establish cause. See Coleman v. Thompson, 115 L. Ed. 2d 640,
670, 111 S. Ct. 2546, 2566 (1991). Something of a higher or-
der, such as the interference of state officials or the creation of
a new ground for relief subsequent to the first petition, is
needed to give sufficient cause. See Murray v. Carrier, 477
U. S. 478, 488 (1986).”
If petitioner cannot overcome this high hurdle, the only
other exception is to prove that the error he wants reversed
caused him a fundamental miscarriage of justice. See McCles-
key, supra, 113 L. Ed. 2d, at 545, 111 S. Ct., at 1470. A succes-
sive petitioner who seeks to invoke this exception has already
received more process than is due. He has already been con-
victed, the state court has affirmed his conviction on direct and
collateral review, and his first habeas petition in the district
court and the court of appeals has been found meritless. He
now wants a federal court to take on yet another habeas peti-
tion and thwart the state’s interest in finality to hear a claim
that should have been made in the first petition. To justify
another round of litigation, such a claim must involve matters
of the utmost gravity.
This Court has recognized that a fundamental miscarriage
of justice is the rarest of exceptions. The parameters to this
exception were first recognized by a majority of this Court in
2. In Reed v. Ross, 468 U.S. 1, 15 (1984), this Court found that cause
could exist for novel claims. However, Teague v. Lane, supra, by limiting
the retroactivity of new constitutional rules on habeas corpus, effectively
eliminates this for.n of cause. See Hopkinson v. Shillinger, 888 F. 2d
1286, 1288-1289 (CA10 1989).
7
Murray v. Carrier, 477 U.S. 478, 481-482 (1986), where peti-
tioner attempted to overturn his rape conviction on federal
habeas corpus through a procedurally defaulted claim. The
Carner Court here recognized one last possibility if petitioner
coujd not show cause and prejudice.
“Accordingly, we think that in an extraordinary case,
where a constitutional violation has probably resulted
in the conviction of one who is actually innuvent, a
federal habeas court may grant the writ even in the
absence of a showing of cause for the procedural de-
fault.” Jd., at 496 (emphasis added).
This exception has never been given a more precise defini-
tion by this Court. Nonetheless, one theme has remained
consistent throughout this Court’s analysis of this exception.
This innocence exception is rare, and shall be granted only in
the most extraordinary circumstances. See Dugger v. Adams,
489 U. S. 401, 411, n. 6 (1989); Smith v. Murray, 477 U. S. 527,
537 (1986); McCleskey, supra, 113 L. Ed. 2d, at 550, 111 S. Ct.,
at 1474-1475; Kuhlmann, supra, 477 VU. S., at 454.
The rarity of this exception reflects both the need to limit
successive petitions and the reality that few such petitions
involve a truly fundamental miscarriage of justice. Our system
is designed to protect the accused from an unjust conviction.
It is the extremely rare case that makes it through all the hur-
dies to get to a successive habeas petition and involve a fun-
damental miscarriage of justice.*
The prohibition against successive petitions plays a key role
in preventing the federal courts from perpetually reviewing
3. One of the most respected federal judges estimated that in 11 years on
the bench he had seen at most half a dozen cases where he “entertained
a real doubt about a defendant’s guilt.” Friendly, supra, 38
U. Chi. L. Rev., at 160, n. 94.
8
state convictions.’ If, however, the injustice exception is given
too broad a definition, it would swallow the general rule
against successive petitions. This Court has recognized this
threat and thus has proceeded with due caution in interpreting
this exception. See Adams, supra, 489 U. S., at 411, n. 6. “We
adopt this standard [fundamental miscarriage of justice] now
to effectuate the clear intent of Congress that successive fed-
eral habeas review should be granted only in rare cases.”
Kuhlmann, supra, 477 U. S., at 454 (emphasis added) (plurali-
ty). Therefore, any definition of the standard enunciated in
Carrier must be narrowly drawn to prevent the injustice that
would follow from too many successive petitions. Allowing a
successive petition under the fundamental miscarriage of jus-
tice standard must be the exception and not the rule.
B. The Need for a Standard.
This case comes to this Court because of the difficulty of
reconciling innocence with the death penalty. Attacking the
justice of a death sentence concedes defendant's guilt of the
murder.’ Innocence is defined as “[t]he absence of guilt.”
Black’s Law Dictionary 708 (Sth ed. 1979). This Court has
recognized the incongruity of the concept of innocence of the
death penalty. “We acknowledge that the concept of ‘actual,’
as distinct from ‘legal,’ innocence does not translate easily into
the context of an alleged error at the sentencing phase of a
trial of a capital offense.” Smith v. Murray, 477 U. S. 527, 537
(1986). The difficulty of reconciling innocence and the death
penalty has also bedeviled the circuit courts. See Johnson v.
Singletary, 938 F. 2d 1166, 1176 (CA11 1991) (en banc).
o» 4. The cause and prejudice standard is also used to excuse procedural
* default in habeas cases. See Carrier, supra, 477 U.S., at 487.
Therefore, any definition of what constitutes a fundamental miscarriage
of justice will also affect this important doctrine.
5. it would be possible to attack in the alternative the injustice of the
"underlying conviction and that of the penalty. Any attack on the penalty,
however, presumes that any attack based upon innocence of the crime
has failed.
9
The better way to address this problem is by returning to
the roots of the innocence exception. The innocence excep-
tion came from the principle that “ ‘{iJn appropriate cases’ the
principles of comity and finality that inform the concepts of
cause and prejudice ‘must yield to the imperative of correcting
a fundamentally unjust incarceration.’ ” Murray v. Carrier, 477
U. S. 478, 495 (1986) (quoting Engle v. Isaac, 456 U. S. 107,
135 (1982)).
While it is difficult to comprehend a person being guilty of
a crime and innocent of a sentence, it is possible to understand
a guilty person's sentence as being a fundamental miscarriage
of justice. The inherent subjectivity of “injustice,” however,
calls for caution.
““{I}t is important, in order to preclude individualized
enforcement of the Constitution in different parts of
the Nation, to lay down as specifically as the nature of
the problem permits the standards or directions that
should govern the District Judges in the disposition of
applications for habeas corpus by prisoners under
sentence of State Courts.’ MecCleskey, supra, 113
L. Ed. 2d, at 546, 111 S. Ct, at 1471 (quoting Brown v.
Allen, 344 U. S. 443, 501-502 (1953) (opinion of Frank-
furter, J.)).
This Court must provide the lower federal courts with some
rule to guide their discretion in determining what is a funda-
mental miscarriage »f justice. It is not enough to say, “I know
it when I see it.” See Jacobellis v. Ohio, 378 U.S. 184, 197
(1964) (Stewart, J., concurring). We need “a sound and work-
able means of channeling the discretion of federal habeas
courts.” Carmier, supra, 477 U. S., at 497. In order to establish
a standard for when penalty phase error is fundamentally un-
just, it will be necessary to examine how the penalty phase
Operates and its purpose. Once the penalty phase is under-
stood, a standard of justice may be developed.
10
C. The Death Penalty.
Before Furman v. Georgia, 408 U. S. 238 (1972), the death
penalty was subject to little more constitutional regulation
than any other aspect of criminal procedure. In most states,
no more than a first degree murder conviction was needed to
*.impose capital punishment. See McGautha v. California, 402
_U. S. 183, 198 (1971). Some states allowed lesser crimes to be
punished by death. See, e.g., Powell v. Alabama, 287 U. S. 45,
50 (1932). One reform. that had been adopted to mitigate
harshness in the syste a was to allow the jury to determine
whether the sentence would be death or life imprisonment.
McGautha, supra, 482 U. S., at 200. This Court had approved
giving the jury unfettered and absolute discretion in sentenc-
ing. Andres v. United States, 333 U.S. 740 (1948).
This world was swept away with this Court's decision in
Furman v. Georgia, 408 U. S. 238 (1972). Furman found that
there was something wrong with the nation’s death penalty
system, but neither explained what exactly was wrong or how
to remedy it. While five justices agreed to vacate the sen-
tences, none could agree on the reasons. Two Justices would
have abolished capital punishment. Furman, supra, 408 U. S.,
at 305 (Brennan, J., concurring); id., at 369 (Marshall, J., con-
curring). Two opinions expressed the belief that the penalty
*- was imposed rarely and the statutes in question provided no
principled means for determining who should and should not
receive the death sentence. /d., at 309-310 (Stewart, J., con-
curring); id., at 311-12 (White, J., concurring). Justice Stewart
indicated that a mandatory sentencing scheme that eliminated
jury discretion would pass constitutional muster. /d., at 307-
308 (Stewart, J., concurring). One Justice felt that the death
penalty was imposed in a discriminatory manner. /d., at 242-
243 (Douglas, J., concurring).
The state legislatures reacted quickly to thts legal firestorm.
Unfortunately, without a majority opinion, they had no guid-
ance for their reforms. Some states chose to eliminate the
jury's discretion to sentence, while others chose guided discre-
tion statutes that defined certain apgravating and mitigating
standards. See Johnson, supra, 938 F. 2d, at 1179; Scheideg-
1]
ger, Capital Punishment in 1987: The Puzzle Nears Comple-
tion, 15 W. St. L. Rev. 95, 107-108 (1987).
This Court chose guided discretion. In order to placate the
fears voiced by Justices White and Stewart in Furman, some
guidance had to be given to the jury in order to prevent the
death penalty from being arbitrarily imposed. “Furman man-
date$, . . . that discretion must be suitably directed and limited
sO as to minimize the risk of wholly arbitrary and capricious
action.” Gregg v. Georgia, 428 U. S. 153, 189 (1976)
(plurality).
While guidance was necessary, it was not total. A discre-
tionless death penalty was seen as encouraging widespread
jury nullification, Woodson v. North Carolina, 428 U. S. 280,
291-296 (1976) (plurality), and had been chosen only due to a
misplaced reliance on Furman, Woodson, supra,,at 298-299.
Most importantly, the Woodson Court came to the previously
unknown realization that individualized consideration of each
death sentence was a “constitutional imperative.” In addition
to examining the crime, the jury must also look to “the charac-
ter and record of the individual offender.” See id., at 303-305.
Gregg and Woodson and the cases interpreting them have
become the Scylla and Charybdis of capital punishment. A
death sentence is valid only if the state limits the sentencer's
discretion, but not so much as to infringe upon the newly in-
vented constitutional imperative of Woodson.
These two lines of authority protect different interests in
different ways. The guidance requirement of Gregg is con-
crete. One constant in this Court's post-Furman death penalty
jurisprudence has been the need to limit the seatencer’s dis-
cretion. See Walton v. Arizona, 111 L. Ed. 2d 511, 532-533,
110 S. Ct. 3047, 3060-3061 (1991) (Scalia, J., concurring). The
standard established is relatively straightforward fog the states
to follow and for the courts to administer. States must provide
the sentencer with “ ‘clear and objective standards’ that ‘make
rationally reviewable the process for imposing a sentence of
death.’ " Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (foot-
notes omitted). The case of complying with this is demon-
12
strated by the fact that since Furman this Court has reversed a
death sentence for excessive discretion only twice. See Wal-
ton, supra, 111 L. Ed. 2d, at 533, 110 S. Ct., at 3061 (Scalia, J.,
concurring).°
The fact that the states have been able to follow the guid-
ance standard does not undermine its importance. The guid-
ance requirement evolved as a means with dealing with the
problems of arbitrariness that so heavily influences the Fur-
man decision. A jury can no longer impose the death penalty
at its whim. It must now find a reason to separate defendant
from those murderers for whom death is not warranted. It
‘’ must do so pursuant to standards established by the state that
provide clear and specific guidance. See Godfrey, supra, 446
U. S., at 428. There is litthe wonder that this Court considers
the need for a guidance to be a “fundamental constitutional
requirement.” Maynard v. Cartwright, 486 U.S. 356, 362
~ (1988).
The individual sentencing requirement developed in Wood-
son is a very different sort of right. The quest to make cach
death sentence individual has moved the death penalty to-
wards its pre-Furman state. The sentencer can “not be pre-
cluded from considering, as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sen-
tence less than death.” Lockett v. Ohio, 438 U.S. 586, 604
(1978) (emphasis in original) (plurality); see Sumner v. Shu-
man, 483 U. S. 66, 75-76 (1987). The sentencer “may not be
precluded from giving effect to all mitigating evidence.” See
McKoy v. North Carolina, 108 L. Ed. 2d 369, 377-378, 110
S. Ct. 1227, 1230-1231 (1990).
6. The Walton concurrence cites Maynard v. Cartwright, 486 U.S. 356, 362-
364 (1988) and Godfrey, supra, 446 U. S., at 428-429 as the two reversals
by this Court due to excessive discretion. Walton, supra, 1\1 L. Ed. 2d, at
$33, 110 S. Ct., at 3061. It is arguable that this Court reversed a third
death penalty for excessive discretion in Clemons v. Mississippi, 108
L. Ed. 2d 725, 110 S. Ct. 1441 (1990).
13
* ‘Guided discretion and individual sentencing are not the
only limits this Court has placed on capital punishment. Only
certain people who have committed certain crimes may be
sentenced to death. Thus a rape conviction may not serve as
the basis for a death sentence. Coker v. Georgia, 433 U. S. 584,
592 (1977) (plurality). Minor participation in a felony underly-
ing felony murder, barring a finding that defendant exhibited a
reckless disregard for life, will not support capital punishment.
Tison v. Arizona, 481 U.S. 137, 157-158 (1987). It is also
probable that persons under 16 may not be sentenced to death
unless the Legislature clearly sets out a lower minimum age.
See Thompson v. Oklahoma, 487 U. S. 815, 857-858 (1988)
(O'Connor, J., concurring). A person may not be executed so
long as he is insane, Ford v. Wainwright, 477 U. S. 399, 408
(1986), nor is it likely that the severely or profoundly retarded
ro A be executed, see Penry v. Lynaugh, 492 U. S. 302, 333
).
- These rights accrue to the defendant not because of a par-
ticular need to manage the death penalty process, but because
of the fundamental injustice of executing a person who fits one
of these particular exceptions. In these cases, death is inap-
propriate because “the objective indicia of community values
have demonstrated a consensus that the death penalty is dis-
proportionate as applied to a certain class of cases... .”
McCleskey v. Kemp, 481 U.S. 279, 305 (1987).
Current death penalty law may be summarized as thus: A
person may not be sentenced to death unless convicted of
murder’ and unless the class of death-cligible murders is
somehow objectively narrowed. This is typically done by find-
ing at least one statutory aggravating circumstance. Once
defendant is convicted of this crime, the sentencer has broad
discretion, being able to hear any mitigating evidence. This
discretion is broadened by the fact that the jury may also hear
aggravating evidence beyond the statutory aggravating circum-
7. At least among the common crimes murder is the only capital offense.
But see 18 U.S. C. § 794 (espionage); id., § 2381 (treason). *
14
stances. See Barclay v. Florida, 463 U. S. 939, 947 (1983). The
sentencer then weighs the aggravating and mitigating facts and
decides whether death or life imprisonment is appropriate.
These roles and functions are important to determining what
penalty phase error constitutes a fundamental miscarriage of
justice.
D. The Eligibility Standard.
. What constitutes a fundamental miscarriage of justice in
the penalty phase can be determined only after applying sev-
eral important principles. Whatever standard is enunciated, it
must insure that the innocence exception remains an excep-
tion. Making the exception too broad would swallow up the
rule against successive petitions, causing considerable harm to
the state and the federal judiciary. See ante, at 4-8. There-
fore, any rule enunciated by this Court must be sufficiently
narrow to preserve the prohibition against successive petitions.
In addition to being narrow, the standard must also be
workable.
“A workable definition [of the miscarriage of justice
exception] is essential to our jurisprudence because we
are often faced with procedurally-defaulted claims, and
many petitioners claim they meet this exception. It is
crucial that we know when to apply the second excep-
tion, so as to limit our interference with the states’
criminal justice systems and promote finality while
simultaneously recognizing the truly extraordinary case
in which a petitioner's claim must be reviewed . . . in
order to avoid a fundamental miscarriage of justice.”
Johnson, supra, 938 F. 2d, at 1176.
The state and the federal courts are not the only ones pro-
tected by a narrow, workable standard. The truly deserving
claimants are best served by the highest, most objective stand-
ard reasonable. If the standard is perceived as being too
broad, then the federal courts will become flooded with suc-
cessive petitions proclaiming the injustice of cach petitioner's
death sentence. “It must prejudice the occasional meritorious
15
application to be buried in a flood of worthless ones.” Brown
v. Allen, 344 U. S. 443, 537 (1953) (Jackson, J.,.concurring in
the judgment). Opening the doors too wide risks getting some
of the few truly worthy petitions lost in the ensuing stampede.
These concerns were paramount in this Court's decision to
adopt the cause and prejudice standard for successive petitions
in McCleskey. “Considerations of certainty and stability in our
discharge of the judicial function . . . " led to the adoption of
the cause and prejudice standard. See McCleskey, 113
L. Fd. 2d, at 546, 111 S. Ct., at 1471. It was well-defined, ob-
jective, and provided “ ‘a sound and workable means of chan-
neling the discretion of federal habeas courts.’ ” /Jd., 113
L. Ed. 2d, at 546, 111 S. Ct., at 1471 (quoting Carrier, supra,
477 U. S., at 497). It also was prone to uniform application.
Id., 113 L. Ed. 2d, at 546, 111 S. Ct., at 1471. Finally, this
Court adopted the cause and prejudice standard in order to
curtail the abusive petitions that in recent years have threat-
ened to undermine the integrity of the habeas corpus process.”
Id., 113 L. Ed. 2d, at 546, 111 S. Ct., at 1471.
Any standard enunciated for the sole exception to the
cause and prejudice test must guard these same interests. If it
does not discourage successive petitions, if it is not objective, if
it cannot be applied uniformly by the federal courts, then the
cause and prejudice standard will fail in its purpose. This will
turn the prohibitions against procedurally defaulted claims and
successive petitions into empty husks.
_ Astandard for determining whether a penalty phase error
Is a fundamental miscarriage of justice that comports with the
principles of McCleskey and has been developed. In order for
penalty phase error to constitute a fundamental miscarriage of
justice, it must go to the authority of the sentencer to impose
the death penalty. “In other words, the petitioner must show
that absent the alleged constitutional error, the jury would
have lacked the discretion to impose the death penalty; that is,
that he is ineligible for the death penalty.” Johnson, supra, 938
F. 2d, at 1183 (emphasis in original). This standard, formulat-
ed by the Eleventh Circuit in Johnson and adopted by the Fifth
Circuit in the present case, Sawyer v. Whitley, 945 F. 2d 812,
16
820 (CAS 1991), provides an objective and understandable
standard that limits successive petitions yet preserves the
fundamental rights in the penalty phase.
A defendant must have three findings made against him
before being sentenced to death. First, he must be convicted
of murder. Second, the finder of fact must determine that
some narrowing fact is true. Third, the sentencer must weigh
all mitigating and aggravating evidence and decide the appro-
priate sentence.
Of the three findings, the first goes to the actual innocence
of the crime, whether the defendant actually committed the
murder. The eligibility standard for miscarriage of justice
addresses the second finding made in the capital punishment
process. A person may not be executed unless the sentencer S
discretion is limited. The method used to limit this discretion
is to require a finding that the murder was statutorily aggravat-
ed. See Maynard v. Cartwright, 486 U. S. 356, 362 (1988).
Error in the third finding, the weighing of aggravating and
mitigating circumstances, would not come within this standard,
however. Once it is determined that a habeas petitioner ts
constitutionally eligible for the death penalty, federal habeas
courts may not use the miscarriage of justice standard to re-
weigh the aggravating and mitigating factors.
Limiting the miscarriage of justice standard to eligibility
provides the necessary objective standard. One cither is or Is
not eligible for the death penalty. Eligibility-based attacks will
be limited to two groups. First, a sentence may be attacked as
unjust on the grounds that the sentencer’s discretion was in-
sufficiently limited. Either the sole statutory aggravating tac-
8. Not every state requires these three findings to be made separaicly In
California, for example, the jury makes the initial finding of guilt of the
underlying crime and the necessary statutory aggravating factor at the
same time, except for the prior murder circumstance, See Cal. Penal
Code § 190.1(a)(1). Next comes the sentencing phase where the jury
weighs the aggravating and mitigating factors and decides whether death
is appropriate. /d., § 190.3. Nonetheless, the three findings are made.
17
tor that made the murder “capital” provides insufficient guid-
ance to the sentencer, cf. Zant v. Stephens, 462 U. S. 862, 882-
884 (1983), or the petitioner may proclaim his innocence of all
of those factors that made his murder capital. The second way
of attacking eligibility is through the defendant's status. If, as
a matter of constitutional law, defendant's status makes him
ineligible for the death penalty, then he may invoke the fun-
damental miscarriage of justice exception. Thus, if a person is
__ insane, Ford, supra, 477 U. S., at 408; or committed a crime not
severe enough to warrant the death penalty, Coker, supra, 435
U. S., at 592; or complains of Tison error, Tison, supra, 481
U. S., at 157-158; or is less than 16 and the state has not speci-
fied a lower age requirement for the death penalty, see
Thompson, supra, 487 U. S., at 857-858 (O'Connor, J., concur-
ring); or is severely mentally retarded, see Penry, supra, 492
U. S., at 312, then he may claim that his death sentence is a
fundamental miscarriage of justice.
Finding such errors do not place an excessive burden on the
federal courts. Whether a defendant's status renders him inel-
igib.e for the death penalty involves answering the relatively
simple question of whether defendant's claim fits one of the
narrow exceptions to death penalty eligibility that this Court
has carved out. An attack on the necessary aggravation in-
volves similarly straightforward issues. If petitioner disputes
that he committed the necessary aggravating acts, he is claim-
ing that he is “innocent” of those particular acts. A person
who cannot be sentenced to death because he did not commit
the necessary aggravating acts is truly “innocent” of the death
penalty.
An attack on the constitutionality of a statutory aggravating
factor is also relatively straightforward and objective. The
purpose behind the guidance requirement is to place an “in-
herent restraint on the arbitrary and capricious infliction of
the death sentence.” Godfrey, supra, 446 U. S., at 428. There
must be a “principled way to distinguish” between the imposi-
tion of the death penalty in one case involving the suspect
circumstance and the failure to impose it in another. See id.,
at 433. While the pursuit of objectivity and precision in aggra-
vating circumstances does not guarantee objectively decided
18
issues, it is a step in that direction. Ascertaining whether an
aggravating circumstance provides sufficient guidance is a
matter of statutory interpretation, a task courts have much
practice with. See Frankfurter, Some Reflections on the Read-
ing of Statutes, 47 Colum. L. Rev. 527 (1947). Furthermore,
the necessary interpretation is not particularly difficult. A
court does not have to determine the exact meaning of a stat-
ute, it only has to know whether the statute was sufficiently
precise to channel the jury’s discretion to impose the death
sentence. See Cartwright, supra, 486 U. S., at 363. Finally, any
difficulty a federal court may have in interpreting a particular
statute may be alleviated by this Court's substantial case law
on the need for statutory aggravating circumstances. Cf. Wal-
ton, supra, 111 L. Ed. 2d, at 532-533; 1105S. Ct., at 3060-3061
(Scalia, J., concurring) (listing decisions of this Court on the
need to channel the sentencer’s discretion).
The precision and objectivity of the eligibility exception
help to insure that it remains the exception and not the rule.
This Court’s decisions on what status makes a person ineligible
for capital punishment are well-defined and easy for the states
to follow. Similarly, aggravating circumstances are rarely
found improper. See ante, at 12. Finally, any attack on the
truth of a particular statutory circumstance Is no more than a
claim of “innocence” with respect to that circumstance. Such
a claim should be as rare as the actual innocence exception,
See Carrier, supra, 477 U. S., at 496.
Although narrow, the eligibility exception is not unjust. It
embraces those cases where the death penalty is wrong as a
matter of law. It excludes those cases where the propriety of
the sentence is a matter of opinion.
The modern revolution in death penalty jurisprudence
derivés from this Court's decision in Furman. The opinions in
Furman were motivated by three reasons for dissatisfaction
with «ne death penalty. One reason, that capital punishment is
inherently cruel and unusual, Furman, supra, 408 U. S., at 305
(Brennan, J., concurring); id., at 369 (Marshall, J., concurring)
has been explicitly rejected by this Court. See Gregg, supra,
428 U. S., at 187. The other two attacks on capital punishment
19
that the death penalty was imposed arbitrarily, see Furman,
supra, at 309-310 (Stewart, J., concurring); id., at 311-312
(White, J., concurring), and that it was imposed in a discrimi-
natory manner, see id., at 255-256 (Douglas, J., concurring),
are dealt with at the eligibility stage of the capital punishment
determination.
The requirement that a person is not eligible for the death
sentence until a proper finding of statutory aggravation is
made was a direct response to Furman’s concern with the arbi-
trariness of the penalty. See ante, at 10-12. By forcing the jury
to find some particular aggravation, this requirement narrows
the jury’s discretion to impose the death penalty and thus
avoids the arbitrariness attacked in Furman.
The aggravation requirement also helps address Justice
Douglas’ concern with discriminatory application. “Yet we
know that the discretion of judges and juries in imposing the
death penalty enables the penalty to be selectively applied,
feeding prejudices against the accused if he is poor and de-
spised, lacking political clout, or if he is a member of a suspect
or unpopular minority, and saving those who by social position
may be in a more protected position.” Furman, supra, 408
U. S., at 255 (Douglas, J., concurring). Statutory aggravating
circumstances, by channeling the jury's discretion to impose
the death sentence, lessens discrimination in the death penal-
ty. Capital punishment is reserved for the most deserving,
while preventing the common murderer from being given a
death sentence for discriminatory reasons. See Gregg, supra,
428 U. S., at 197-198. As the guidance requirement resolves
the two legitimate complaints with capital punishment from
Furman, there is little wonder that this right is “fundamental,”
see Cartwright, supra, 486 U. S., at 362, and thus within the
miscarriage of justice exception to successive habeas petitions.
The status protection of the eligibility test is similarly fun-
damental. While rape is a serious crime, death is a “grossly
disproportionate and excessive punishment... .” Coker, su-
pra, 433 U.S., at 592. Giving the death sentence to the minor
participant in the underlying felony in a felony murder case is
similarly extreme, and thus juries have almost always refused
20
to impose the death penalty in such circumstances. See
Enmund v. Florida, 458 U. S. 782, 795-796 (1982). Executing
the insane was considered barbarous before Blackstone's time
and has always been prohibited in this country. See Ford,
supra, 477 U. S., at 406-409.
Along with supplying a proper standard to define a funda-
mental! miscarriage of justice, the eligibility test also follows
this Court's scant authority in this field. The interests the cli-
gibility test protects, narrowness, objectivity, and ease of appli-
cation, are the same interests protected by the miscarriage of
justice standard. The miscarriage of justice exception is sup-
posed to be invoked only rarely. “We remain confident that,
for the most part, ‘victims of a fundamental miscarriage of jus-
tice will meet the cause-and-prejudice standard.’ " Carrier,
supra, 477 U. S., at 495-496 (quoting Engle, supra, 456 U. S., at
135). Keeping the test for injustice narrow and objective in-
sures that the “ ‘extraordinary case’ ” of injustice is not turned
“into an all too ordinary one.” Dugger v. Adams, 489 U. S. 401,
412, n. 6 (1989).
This Court has addressed the issue of fundamental miscar-
riage of justice in the sentencing phase of a capital case two
times. In Smith v. Murray, 477 U. S. 527, 529-530 (1986), the
alleged error had to do with defendant's admission of prior
misconduct during a psychiatric interview arranged by his own
attorney. The Smith Court concluded that admitting this evi-
dence “did not serve to pervert the jury's deliberations con-
cerning the ultimate question whether in fact petitioner consti-
tuted a continuing threat of society.” /d., at 538 (emphasis in
original). Therefore, refusing to consider this procedurally
defaulted claim on federal habeas corpus was not a fundamen-
tal miscarriage of justice. /bid.
The intended emphasis of this statement appears to be on
the jury's reaching an acceptable result based on all the infor-
mation available, even though some of that information may
have been illegally obtained. Cf. Friendly, supra, 38
U. Chi. L. Rev., at 160. It does not contradict the eligibility
test. In Virginia a jury must find at least one aggravating cir-
cumstance before it may recommend a death sentence. See
21
Va. Code § 19.2-264.2 The alleged error in Smith went to the
validity of one of these circumstances, whether defendant
“constituted a continuing serious threat to society.” See ibid.
By finding that the testimony did not render Smith “innocent”
of one of the aggravating circumstances found against him, this
Court kept its analysis of the miscarriage of justice standard to
the defendant's eligibility for the death penalty.
Defendant argues that if eligibility were the test for the
miscarriage of justice exception, then the Smith Court could
have dismissed the claim on the grounds that one of the aggra-
vating grounds was valid and therefore defendant was cligible
for the death penalty. Pet. Brief 21, n. 28. But one reason this
Court took the case was to decide whether the Court of Ap-
peals properly applied Zant v. Stephens, 462 U. S. 862 (1983)
to the psychiatric evidence under attack Smith, supra, 477
U.S., at 528-529. The Smith majority did not specify what part
of Zant it wanted to analyze. The dissent, written by the au-
thor of Zant, felt that the Court of Appeals improperly applied
a when it upheld the death sentence in spite of one of the
WoO aggravating circumstances being invalid. Smi
U. S., at 554 (Stevens, J., yr ———
Therefore, contrary to defendant’s claim in the present
case, invalidating the “continuing threat” circumstance could
have invalidated the death sentence in Smith. While a majori-
ty of the Court may have found that under Zant the death
penalty was valid after invalidating one of the circumstances,
the Smith majority avoided deciding this constitutional ques-
tion by assuring itself that both aggravating circumstances
were valid. Thus the Smith Court did find that Smith was eli-
gible for the death penalty when it found his sentence was not
a fundamental miscarriage of justice. .
The reference in Smith to perverting the jury's delibera-
tions, however, might be construed to open up any claim of
procedural error in instructing the jury, selecting the jury,
arguing to the jury, or admitting evidence to the jury. This
interpretation was adopted by the dissent in the other case
dealing with “miscarriage of justice” in the penalty phase:
Dugger v. Adams, supra. In Adams, defendant was sentenced
22
to death for molesting and murdering an eight-year-old girl.
489 U. S., at 404, n. 2. The trial court instructed the jury that
their recommendation was only advisory. /d., at 440. The
dissent claimed that the “alleged error is thus global in scope:
it necessarily pervades the entire sentencing process.” /d., at
423 (Blackmun, J., dissenting).
The majority refused to adopt this process-based approach
to the fundamental miscarriage of justice standard.
“Demonstrating that an error is by its nature the kind
of error that might have affected the accuracy of a
death sentence is far from demonstrating that an indi-
vidual defendant probably is ‘actually innocent’ of the
sentence he or she received. The approach taken by
the dissent would turn the case in which an error re-
sults in a fundamental miscarriage of justice, the ‘ex-
traordinary case,’ Carrier, supra, at 496, into an all too
ordinary one.” /d., at 411.
In Smith, this Court was willing to analyze error under the
miscarriage of justice standard to the extent that it under-
mined defendant's eligibility for the death penalty. In Adams,
process-based attacks on the accuracy of the decision to sen-
tence defendant to death did not invoke this exception.
Therefore, once a defendant is deemed eligible for the death
penalty, any error unrelated to his cligibility for his sentence is
not a fundamental miscarriage of justice.
At the guilt phase, innocence is the test for the fundamen-
tal miscarriage of justice. See Carrier, supra, 477 U. S., at 496.
It is unjust because everybody believes sending an innocent
person into prison is unjust. The same consensus is not
present for the properly convicted capital murderer. The deci-
sion that defendant has committed sufficiently aggravated
murder renders a death sentence proportionate to the crime
committed, See Pulley v. Harris, 465 U. S. 37, 50 (1984). Once
a person is convicted of this crime, a person can, and often
times will, be sentenced to death. The overwhelming majority
of Americans favor capital punishment for murder. UV. S.
Bureau of Justice Statistics, Sourcebook of Criminal Justice
:
|
;
23
Statistics — 1988, at 223. The vast majority of states have
recognized this sentiment and enacted statutes providing for
the death penalty for aggravated murder. U.S. Bureau of
Justice Statistics, Capital Punishment 1990, at 1.
The extensive set of constitutional eligibility restrictions,
ante, at 13, combined with the state statutory system, defines
which murderers are death-eligible. If the defendant is in fact
a murderer, if his crime does in fact fit the state’s definition of
a capital offense, and if neither he nor his crime in fact comes
within any of the ineligible classes, then death is an authorized
sentence which our society has determined to be not cruel and
not grossly disproportionate. This detailed and exhaustive
body of law, built up so painfully over so many years, has iden-
tified and excluded those cases where a death sentence would
be a fundamental miscarriage of justice. The remainder of
cases are those where reasonable people may differ as to
whether death is the appropriate punishment. If a particularly
hard-nosed sentencer could legitimately impose the sentence
following an absolutely perfect trial and sentencing hearing,
then that sentence is not a fundamental miscarriage of justice.
The Fifth Circuit, applying an eligibility test, properly found
thai defendant was cligible for the out ted in ‘on he did
— oem murder, and thus his sentence was not a fun-
amental miscarriage of justice. Sawyer v. Whitley, 945 F. 2d
812, 823-825 (CAS 1991). Giving the court of ants eligibili-
ty finding its proper deference, cf. Haring v. Prosise, 462 U. S.
306, 314, n. 8 (1983) (findings of state law), defendant’s case
presents ample cvidence for the justice of his sentence. The
court of appeals found that defendant was guilty of aggravated
arson. /d., at 824-825, and n. 22. In light of the horrific cir-
cumstances of the killing, death cannot be a fundamentally
unjust punishment.
II. Defendant’s proposed standard is inappropriate.
Defendant wants a much broader and more subjective
standard. He would call a fundamental miscarriage of justice
any death sentence where the alleged error led to the admis-
24
sion of false evidence or the preclusion of true evidence that
led to “a probability that the jury would not have imposed
death.” Pet. Brief 19. Defendant would attack the accuracy of
the death sentence in light of the alleged errors.” “ ‘The mis-
carriage of justice concept permits consideration of a default-
ed claim, even in the absence of a showing of ‘cause’ where the
alleged constitutional error has resulted in a factually inaccu-
rate sentencing profile....’” Pet. Brief 15, n. 21 (quoting
Johnson v. Singletary, 938 F. 2d 1166, 1200 (CA11 1991) (en
banc) (Anderson, J., dissenting) (emphasis added)).
This standard would declare open season on the death
penalty. By allowing federal courts to focus on the accuracy of
the sentencer’s decision to impose death, defendant would
plunge federal courts into perpetual review of the original
decision to impose death. It is a hopelessly subjective standard
that will amount to no more than speculating as to what the
sentencer would actually do if the alleged error had not been
made. Such a standard is also too broad, allowing too many
unworthy claims to be heard by federal courts. The result
would be an exception that would swallow the rule against
successive petitions and procedurally defaulted claims and
allow federal courts to create an individualized interpretation
of the Constitution for death penalty petitioners.
Defendant's first problem is with this Court’s own prece-
dents. He draws the true and false facts standards from Smith
v. Murray, 477 U. S. 527, 538 (1986). This use of Smith makes
too much out of what is at best dicta. The alleged error in
Smith went to a statutory aggravating circumstance which
9. Defendant also alleges that the State suppressed excuipatory evidence
regarding his guilt of first degree murder. Pet. Brief 47-50. Yet this
claim, if true, does not require an innocence exception. State
concealment of evidence is cause under the cause and prejudice test.
Amadeo y. Zant, 486 U.S. 214, 222 (1988). This demonstrates the
Carrier Court's observation that most miscarriage of justice cases will
satisfy the cause and prejudice test. Carrier, supra, 477 U. S., at 495-496.
Defendant's standard, by focusing on factual accuracy in the sentencing
process, is unnecessary.
25
determined whether defendant was eligible for the de
ath pen-
alty. See ante, at 20-22. Attacking the accuracy of the Aso
decision has been rejected by this Court. “Demonstrating that
an error is by its nature the kind of error that might have af-
fected the accuracy of a death sentence is far from demonstrat-
ms sae an individual defendant probably is ‘actually innocent’
of the sentence he or she received.” Du
U.S. 401, 412 (1989). itis apm
Defendant's standard is drawn to avoid direct conflict with
Adams. Adams involved allegedly incorrect jury instructions.
Id., at 403. By sticking to the facts, defendant thus does not
directly contradict the precise holding of Adams. His standard
is nonetheless contrary to underlying rationale of Adams. Jury
instructions, while not facts, can be more crucial to the accura-
cy of a death sentence. In Adams, the instruction arguably
violated this Court’s decision in Caldwell v. Mississippi, 472
U. S. 320 (1985). Adams, supra, 489 U. S., at 402-403." The
jury instructions in Adams told the jury that it was not respon-
sible for imposing the death sentence. Instead, it was the judi-
ciary that bore the ultimate burden. /d., at 403. In Caldwell
the prosecution made a similar argument to the sentencing
jury. Caldwell, supra, 472 U. S., at 325-326. The Caldwell
Court excoriated this argument for the improper influence it
would have on the jury's decision to impose th
tence. See id., at 332. —"
. The Adams Court chose wisely when it refused to delve
into the accuracy of the death sentence. Ascertaining the
effect of a piece of evidence on the accuracy of jury’s discre-
tion is always difficult. Only a mind reader can truly ascertain
what effect an item of evidence would have on a verdict.
In reviewing a guilty verdict, a court has som ideli
lewin, . e guidelines.
The admissibility and use of evidence is typically heavily regu-
lated. Most importantly, to convict someone of a crime, a jury
10. We Say “arguably” because of differences in the Florida and Mississippi
sentencing systems. See id., at 403, n. 1.
26
has to find beyond a reasonable doubt that the accused com-
mitted the crime. /n re Winship, 397 U. S. 358, 364 (1970).
The sentencing jury's decision in a capital case is much
more subjective. There is no limit on what relevant mitigating
evidence may be admitted. See Lockett v. Ohio, 438 U. S. 586,
604-605 (1978) while the state may channel the jury’s discre-
tion regarding the weighing process, see Blystone v. Pennsylva-
nia, 108 L. Ed. 2d 255, 263, 110 S. Ct. 1078, 1082 (1990), the
sentencing jury still retains considerable discretion over
whether to impose the death sentence, cf. McKoy v. North
Carolina, 108 L. Ed. 2d 369, 377-378, 110 S. Ct. 1227, 1230-
1231 (1990) (sentencer must be allowed to give effect to all
mitigating evidence). The sentencing jury is given this wide
access to evidence and broad discretion in order to insure that
the sentencing process is individualized to each particular
defendant. See Woodson v. North Carolina, 428 U. S. 280,
304-305 (1976) (plurality).
Once the jury has found the necessary statutory aggravating
circumstance, any disagreement over whether to impose the
death penalty is no more than a matter of opinion. The nar-
rowing process that goes on in order to make defendant cligi-
ble for the death penalty eliminates the truly undeserving from
consideration for the death penalty. See ante, at 22-23. Of
those defendants eligible for the death penalty, at least some
people will agree that the death sentence is proper. Sec ante,
at 23. Thus, when reviewing the “accuracy” of a death sen-
tence, a federal court can do no more than second-guess the
sentencing jury. It will have to reweigh the aggravating and
mitigating factors itself.
In Godfrey v. Georgia, 446 U. S. 420, 428 (1980), this Court
condemned the imposition of the death penalty where the only
statutory aggrav“tion was that the murder was “outrageously
or wantonly vile, horrible and inhuman.” As the trial judge
gave no instruction on the meaning of this statute, the jury's
interpretation of it could “only be the subject of sheer specula-
tion.” Jd., at 429. The federal habeas judge reviewing the
effect of new evidence on the accuracy of the sentencing jury’s
decision will be forced to engage in the same type of specula-
27
tion. “The capital sentencing decision requires the individual
Jurors to focus their collective judgment on the unique charac-
teristics of a particular criminal defendant. /t is not surprising
that such collective judgments are often difficult to explain.”
= v. Kemp, 481 U. S. 279, 311 (1987) (emphasis ad-
The Johnson Court noted the difficulty of this decision.
“When a defendant is eligible for the death
penalty . . . , it is nearly impossible to determine (at
the sentencing body's ultimate conclusion that impris-
onment is more appropriate than the death penalty (or
vice versa) is ‘correct’ or ‘accurate’ or ‘incorrect’ or
“imaccurate.’” Johnson, supra, 938 F. 2d, at 1183-1184.
The only alternative to speculating on whether the sen-
tencer would have imposed death had the alleged error not
been made is for the federal court to determine for itself
whether a death sentence was accurate. It could take the call
for accuracy to heart and decide for itself whether the defend-
ant before it should be sentenced to death in light of all the
aggravating and mitigating evidence. While a federal court
may cxamine the rationality of a state jury’s verdict, it cannot
substitute its own judgment for that of the jury. See Jackson v.
Virginia, 443 U. S. 307, 318-319 (1979).
Defendant claims federal courts are used to making this
type of determination. Citing Strickland v. Washington, 466
U. S. 668 (1984), he notes that this Court has developed
standards for dealing with the effect of errors on the sentenc-
er’s balancing of aggravating and mitigating factors. Pet. Brief
30-31. The standard defendani wishes to import from Strick-
land is too broad to provide an accurate definition of a funda-
mental miscarriage of justice. What the Sirickland Court said
was that “the question is whether there is a reasonable probabil-
ity that, absent the errors, the sentencer—including an appc!-
late court, to the extent it independently rewcighs the evi-
dence—would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Strick-
land, supra, 466 U. S., at 695 (emphasis added).
28
This standard was developed for claims properly before a
federal court. Hearing a successive petition should be an
exception and not the rule. Defendant's test would eliminate
the bar against successive petitions for claims alleging ineffec-
tive assistance of counsel involving the improper admission of
or failure to submit evidence at the sentencing phase.
Such claims regarding counsel are not unusual. Federal
courts are frequently presented with the claim that a death
sentence was the result of ineffective assistance of counsel.
See Johnson, supra, 938 F. 2d, at 1185. Attorneys cannot look
into every possible line of inquiry. See Strickland, supra, 466
U. S., at 691. While error is not likely, given the fact that any
relevant mitigating evidence may be submitted to the sentenc-
er, failure to follow a particular line always could be an error.
Thus most capital cases will present claims of Strickland error
that could come within defendant's proposed standard.
Adopting such a standard will only encourage the sandbagging
that is the bane of federal habeas corpus. Cf. Wainwright v.
Sykes, 433 U. S. 72, 89 (1977). Furthermore, defendant wants
to go beyond Strickland. Ultimately, he wants the federal
courts to assess the accuracy of the death sentence. Pet. Briet
15, n. 21. The Strickland Court only addressed the probable
impact of an error on a jury's decision. It never addressed the
propriety of the death sentence.
Defendant's standard, if adopted, will bring up a serious
problem in those death penalties reversed as fundamental
miscarriages of justice. If, on retrial, a defendant is again sen-
tenced to death in spite of the factual errors being corrected,
what will the federal habeas court do when confronted by a
new habeas petition? It has already held that such a death
sentence is fundamentally unjust. But if the constitutional
errors have been corrected in the retrial, it has no ground to
reverse the death sentence. The bar against successive peti-
tions was meant to defuse tensions between state and federal
courts not aggravate them. As the decision whether to grant
mercy is inherently subjective, federal courts will have to rely
on their instincts to determine how an error would influence
the sentence. Thus, review of the accuracy of the individual-
29
ized sentencing process, cf. Woodson, supra, 428 U. S., at 304-
30S, will lead to an individual interpretation of the constitution
unique to every federal habeas petitioner claiming a funda-
mental miscarriage of justice. Federal courts must be given
sufficiently objective and precise standards to prevent this
from happening. See McCleskey v. Zant, 113 L. Ed. 2d 517
546, 111 S. Ct. 1454, 1471 (1991). .
_ This Court adopted the cause and prejudice test for succes-
sive petitions in order to provide federal courts with a worka-
ble test that channels the discretion of the federal courts. /d.,
113 L. Ed. 2d, at 546, 111 S. Ct., at 1471. Requiring federal
courts to ascertain the “accuracy” of an inherently subjective
decision to impose the death sentence is at war with this prin-
ciple. In order to review the accuracy of the sentence in light
of a petitioner’s claim of error, the habeas court will have to
look at all the aggravating and mitigating circumstances. This
cumbersome review of the record will be done each time a
capital defendant files a successive petition claiming a funda-
mental miscarriage of justice. Thus, federal courts face the
prospect of endless review of successive habeas petitions in,
capital cases, each one alleging one new factual “inaccuracy”
making the sentence unjust.
Capital defendants have every motive to engage in such a
manipulation of habeas corpus. A typical habeas petitioner
has nothing to lose in filing a successive petition. Someone on
death row, however, has everything to gain by filing a petition.
Each Stay he receives pursuant to a pending petition allows
him to frustrate the execution of his sentence. So long as he
can delay execution through habeas corpus, he can “win” his
case against the state. Putting federal courts in perpetual re-
view of his sentencing hearing is one way to ensure this.
30
Inevitably, a reaction will set in against this abuse. Courts,
to preserve their own schedules and to avoid being tools of
delay, will give such claims at best cursory treatment. Justice
Jackson's prophecy will then come true. The occasionally
meritorious application will be “buried in a flood of worthless
ones.” Brown v. Allen, 344 U. S. 443, 537 (Jackson, J., concur-
ring in the judgment).
CONCLUSION’
The decision of the Court of Appeals for the Fifth Circuit
should be affirmed.
Dated: January, 1992
Respectfully submitted,
CHARLES L. HOBSON
Attorney for Amicus Curiae
Criminal Justice Legal Foundation
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.