Amicus Curiae Brief — Jones v. United States

Supreme Court, U.S.

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IN THE .

Supreme Court of the United States

OCTOBER TERM, 1998

Louis JONES, JR..,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF AMICUS CURIAE OF THE

; CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, California 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

* Attorney of Record

QUESTIONS PRESENTED

1. Whether the petitioner was entitled to a jury instruction

that the jury’s failure to agree on a sentencing recommendation

automatically would result in a court-imposed sentence of life

imprisonment without possibility of release.

2. Whether there is a reasonable likelihood that the jury

instructions led the jury to believe that the deadlock on the

penalty recommendation would automatically result in a court-

imposed sentence less severe than life imprisonment.

3. Whether the court of appeals correctly held that the

submission of invalid non-statutory aggravating factors was

harmless beyond a feasonable doubt.

(i)

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Construing the statute to authorize a single-juror veto would

make the federal death penalty more arbitrary and less

ERC ieancccs Vibe G sub Os bbs web tees cces 4

II

18 U. S. C. §3593 allows the trial court to impanel a new jury

if a jury deadlocks over the sentence ............... 12

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(iii)

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TABLE OF AUTHORITIES

Cases

Bouie v. City of Columbia, 378 U. S. 347, 12 L. Ed. 2d 894,

BED. Ga HER Gee wo vcancvesnncs sdb vuseaneuas 16

Bullington v. Missouri, 451 U. S. 430, 68 L. Ed. 2d 270,

SOE BD. Gh. DERG wk vc diccdeseudedctimiciouwess 5

California v. Brown, 479 U. S. 538, 93 L. Ed. 2d 934,

a Os G8. Se Cee 0 be vk ncapanscdvenbonkaes 4,8

Chapman v. United States, 500 U. S. 453, 114 L. Ed. 2d 524,

ged: 3 2... ae ee ee 16

Chicago v. Environmental Defense Fund, 511 U. S. 328,

128 L. Ed. 2d 302, 114.S. Ct. 1588 (1994) .......... 18

Church of Holy Trinity v. United States, 143 U. S. 457,

SEL. BA Za TSS. CR FOS GIES wa ccccsicvccses: 14

Conroy v. Aniskoff, 507 U. S. 511, 123 L. Ed. 2d 229,

SUPE, Gh, Bees eee wh vcxianeknctécnesndenskuss 12

Dawson v. Delaware, 503 U. S. 159, 117 L. Ed. 2d 309,

jeg Bo PMR eae ee 8

Dunn v. Commodity Futures Trading Comm'n,

519 U. S. 465, 137 L. Ed. 2d 93, 117 S. Ct. 913

te teeny er er eT ree 7

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

SES. GE Fees 64 hb 4 bud aka chevteder scans 4,5

King v. St. Vincent’s Hosp., 502 U. S. 215,

116 L. Ed. 2d 578, 112 S.Ct. S70 (1991) ........... 15

Landgraf v. USI Film Products, 511 U.S. 244,

128 L. Ed. 2d 229, 114. S. Ct. 1483 (1994) .......... 17

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

es ee ED 6s wisn ri-picdbebadadddadnresi: 9

McCleskey v. Kemp, 481 U. S. 279, 95 L. Ed. 2d 262,

See SEE EEE a cddesUscrveus obEdos codices 3 5

McCleskey v. Kemp, 580 F. Supp. 338 (ND Ga. 1984) ... 5

McKoy v. North Carolina, 494 U. S. 433, 108 L. Ed. 2d 369,

SD Gs ST OI ca ciae kduviebkee eae 9, 10, 12

Miller v. Florida, 482 U. S. 423, 96 L. Ed. 2d 351,

hh aL loesehelspedees 16

Mills v. Maryland, 486 U. S. 367, 100 L. Ed. 2d 384,

a ae cs iad Cone capes 9,10

Morgan Vv. Illinois, 504 U. S. 719, 119 L. Ed. 2d 492,

I a uw 8

Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720,

ee a a 7

Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 95 L. Ed. 2d 39,

es ID cL. nuance cdbateldvcaubisice 7

Public Citizen v. Department of Justice, 491 U. S. 440,

105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989) .......... 14

Richardson v. Marsh, 481 U. S. 200, 95 L. Ed. 2d 176,

a oe he fe ae 8

Richardson v. United States, 468 U. S. 317, 82 L. Ed. 2d 242,

ee OE 6 a 2 a wy hoa end as ond 6 056 ks 15

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

ee 16

Tuilaepa v. California, 512 U. S. 967, 129 L. Ed. 2d 750,

ee noo Casa maddd bowen scan 6c’ 4

vi

United States v. Gonzales, 520 U. S. 1, 137 L. Ed. 2d 132,

tep Re Bf), RG ery roe 18, 19

United States v. Heirs of Boisdoré, 8 How. (49 U.S.) 113,

ee, We ne oe eee eda oa ee 7

United States v. Jones, 132 F. 3d 232 (CAS 1998) ..... 2,3

United States v. Kramer, 955 F. 2d 479 (CA7 1992)..... 15

United States v. Lanier, 520 U. S. 259, 137 L. Ed. 2d 432,

See ee ER, SPIED + 05 cays ben geeudecdbbees Bak 16

United States v. R. L. C., 503 U. S. 291, 117 L. Ed. 2d 559,

See ey CE. . dpa ctunes Oeubeeubetean é 18

Wainwright v. Witt, 469 U. S. 412, 83 L. Ed. 2d 841,

St Gas EE 6.3.4 cb. 54 c¥nsddumetheesecsae 8,9

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d 511,

SO eH + 5G wh oh curds oka bueceur< 4

Zant v. Stephens, 456 U. S. 410, 72 L. Ed. 2d 222,

Fe as Se Cs 5 wb oeSPabebctkwwdoced Shaws 6

United States Statutes

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OS We ah 0. EE vs oe cee ckceubeseatotuaeats 12, 18

Sp an BS. Ge Sa > kneScnveseisas meee 8, 12, 13, 14, 16

Treatises

J Moore, et al., Moore’s Federal Practice

Ce, Gee bc sve stecdncvetelthbeedsaaneke 15

Vii

Death Sentencing Issues: Hearings before the Subcommittee

on Civil and Constitutional Rights, Committee on the

Judiciary, House of Representatives, 102d Cong., Ist Sess.,

Se EE tn Dba aekeieh Cake abin ceN oodles aus << 5

Federal Death Penalty Legislation: Hearings before the

Subcommittee on Crime, Comsfitter on the Judiciary,

House of Representatives, 101st Cong., 2d Sess., ser. 95

Pee PE Be ee Tee Eee fe? EPP eee eS Her er 11

H. R. Rep. No. 103-467, 103d Cong., 2d Sess.

SEE rikieh ie ckeduk bi pasate vee ok nee és 7,17

H. R. Rep. No. 103-711, Conference Report to accompany

H.R. 3355, 103d Cong., 2d Sess. (1994) ............. 6

S. Rep. No. 101-170, 101st Cong., Ist Sess. (1989) ..... 17

Scheidegger, Capital Punishment in 1987: The Puzzle Nears

Completion, 15 West. St. L. Rev 95 (1987) ........... 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

~ Louts JONES, JR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

rr 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 protection _~

of the accused into balance with the rights of the victim and of

society to a reliable determination of guilt and to the imposition

and execution of a just punishment.

The defendant in this case asks the Court to construé the

Federal Death Penalty Act to allow a single juror to veto the

death penalty despite the well-founded conclusion of the other

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

eleven jurors. Such an arbitrary mechanism for blocking justice

would be contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

In February 1995, defendant Louis Jones kidnapped Private

Tracie McBride from Goodfellow Air Force Base near San

Angelo, Texas. United States v. Jones, 132 F. 3d 232, 237

(CAS 1998). In the course of the abduction, he assaulted and

severely injured another private who had attempted to rescue

McBride. He subsequently confessed, after being advised of

and waiving his right to remain silent. /bid.

“In his statement, Jones admitted to taking McBride back to

his apartment, tying her up, and placing her in the closet.

Jones stated that he then drove McBride to a remote

location where he repeatedly struck her over the head with

a tire iron until she was dead.” Jbid.

He led investigators to the body. “The autopsy . . . revealed

evidence of sexual assault.” Jbid.

The jury convicted Jones of kidnapping resulting in a death,

18 U.S. C. §1201(a)(2). Jones, 132 F. 3d, at 237-238. The

jury further found that he intended to kill McBride. /d., at 238.

The jury also found unanimously and beyond a reasonable

doubt two statutory aggravating factors: causing death during

a kidnapping and committing the offense in an especially

heinous, cruel, and depraved manner. /bid.

The jury found two non-statutory aggravating factors

unanimously, and ten mitigating factors were found by one or

more jurors. /bid. However, none of the mitigating factors was

found unanimously, and only two were found true by even a

majority of the jury. Brief for Petitioner 11-12, n. 7. Although

defendant calls his psychiatric testimony “compelling,” id., at

45, only one juror believed it. /d., at 12, n. 7. Similarly, eleven

jurors rejected his claim of “severe mental or emotional distur-

bance,” id., at 11, n. 7, and two-thirds rejected the notorious

“abuse excuse.” See ibid.

After weighing the aggravating against mitigating factors,

the jury unanimously recommended the death penalty. Jones,

supra, 132 F. 3d, at 239.

Defendant appealed. Among other grounds, he contended

that the jury should have been instructed that failure to reach a

unanimous verdict would have resulted in a life sentence. /d.,

at 242. He had requested an instruction expressly telling the

jury that a single juror could veto a death sentence, prevailing

over the contrary opinion of the other eleven jurors. Brief for

Petitioner 9-10. The Fifth Circuit rejected this argument at its

premise, holding that a hung jury would not require a life

sentence, but instead that a second jury would be impaneled for

a new sentencing hearing. Jones, 132 F. 3d, at 243.

On October 5, 1998, this Court granted certiorari limite’ to

the questions stated supra, at i. This brief amicus curiae

addresses only Question 1.

SUMMARY OF ARGUMENT

The Fifth Circuit correctly interpreted the statute. Under the

Federal Death Penalty Act, if the jury hangs at the penalty

phase, the trial court must declare a mistrial and impanel a

second jury.

The single-juror veto system urged by defendant would

make the death penalty more arbitrary and more biased. The

policy considerations underlying Furman v. Georgia require

that courts construe statutes to make capital sentencing as

evenhanded as possible. The choice of sentence should be

based on the offense and the offender, not on the idiosyncracies

or prejudices of the jurors. Random, idiosyncratic, or biased

life sentences for defendants who deserve death are just as

detrimental to evenhanded sentencing as the reverse situation.

A single-juror veto would make such verdicts more likely.

The text of the statute is contrary to defendant’s interpreta-

tion, and the scant legislative history does not support it.

Defendant's interpretation would make two sections of the law

contradict each other, while the Court of Appeals’ interpretation

makes them consistent.

ARGUMENT

I. Construing the statute to authorize a single-juror

veto would make the federal death penalty more

arbitrary and less evenhanded.

The long, sometimes winding, path of this Court’s Eighth

Amendment jurisprudence has produced two central principles.

See California v. Brown, 479 U. 8. 538, 544 (1987) (O’Connor,

J., concurring). One, which might be called the evenhandedness

principle, is that the sentencer’s “ ‘discretion must be suitably

directed and limited so as to minimize the risk of wholly

arbitrary and capricious action.’ ” /bid. (quoting Gregg v.

Georgia, 428 U. S. 153, 189 (1976) (lead opinion)). The other,

which might be called the individualization principle, is that the

“sentencing body must be able to consider any relevant mitigat-

ing evidence regarding the defendant's character or background,

and the circumstances of the particular offense.” Jbid.

These two principles are sometimes referred to as being in

“tension,” ibid.; see Tuilaepa v. California, 512 U. S. 967, 973

(1994), and sometimes in more colorful language. See Walton

v. Arizona, 497 U. S. 639, 664 (1990) (Scalia, J., concurring).

Even so, in Tuilaepa the Court noted a common principle:

“The State must ensure that the process is neutral and principled

so as to guard against bias or caprice in the sentencing deci-

sion.” 512 U. S., at 973.

Minimizing bias and caprice is not the same as minimizing

the number of death sentences rendered. The statutes struck

down in Furman vy. Georgia, 408 U. S. 238 (1972) were invalid

because the persons sentenced to death under them were a

“eapriciously selected random handful.” /d., at 309-310

(opinion of Stewart, J.). The death penalty was “unusual”

because it was not imposed often enough for death-eligible

offenses. /d., at 309. A system that makes an offense capital

but grants mercy at random is just as capricious as one that

imposes capital punishment at random.

Then there is the problem of McCleskey v. Kemp, 481 U.S.

279 (1987). McCleskey’s expert claimed that his study showed

that defendants who had murdered white victims were more

likely to be sentenced to death than defendants who had

murdered black victims. See id., at 320 (Brennan, J., dissent-

ing). Fortunately, the problem is nowhere near as stark as the

dissent made it out to be. See McCleskey v. Kemp, 580

F. Supp. 338, 379 (ND Ga. 1984) (study’s race-of-victim bias

finding based on flawed, incomplete models); Death Sentencing

Issues: Hearings before the Subcommittee on Civil and

Constitutional Rights, Committee on the Judiciary, House of

Representatives, 102d Cong., Ist Sess., ser. 33, p. 92 (1990)

(statement of Stephen P. Klein, Ph.D.) (“controlling for several

case characteristics shrunk [the] disparity to 3 percentage

points—a difference that was not Statistically significant”).

Even so, any possibility of bias along these lines is a matter for

public concern.

Justice Brennan was undeniably correct when he said that

“diminished willingness to render [a death] sentence when

blacks are victims[ ] reflects a devaluation of the lives of black

persons.” McCleskey, supra, 481 U. S., at 336 (dissent); see also

Scheidegger, Capital Punishment in 1987: The Puzzle Nears

Completion, 15 West. St. L. Rev 95, 125 (1987). The problem,

though, was that the injustice had not been committed in

McCleskey’s case. He was guilty and deserved his punishment.

The injustice was committed in the black-victim cases where a

death sentence should have been returned but was not. Those

injustices, unfortunately, cannot be corrected on appeal. See

Bullington v. Missouri, 451 U. S. 430, 446 (1981) (double

jeopardy protection extended to capital sentencing decision).

Constitutional doctrine cannot cure every problem. In

particular, its ability to minimize caprice and bias is limited,

especially when the problem consists of random or biased

grants of lenient sentences to undeserving defendants. A

doctrine that the state cannot do justice in any case until it does

justice in every case, thereby overturning the well-deserved

sentences of guilty criminals, would be a disaster. That, in

essence, was the proposal which this Court rejected in McCles-

key and which Congress rejected when it deleted the so-called

Racial Justice Act. See H. R. Rep. No. 103-711, Conference

Report to accompany H. R. 3355, 103d Cong., 2d Sess., 388

(1994).

We must look elsewhere for answers. Legislatures should

write sentencing procedure statutes that minimize the chances

of arbitrary, capricious, or biased decisions in either direction.

When statutes are subject to more than one interpretation, courts

should construe them in a way to promote the goal of

evenhandedness, at least when that can be done without damage

to the goal of individualization.

Almost all of this Court’s prior post-Furman capital cases

have involved state statutes, so the task of construing the

statutes has rested primarily with state courts. See, e.g., Zant

v. Stephens, 456 U. S. 410, 416-417 (1982) (per curiam)

(certifying to state court a question on operation of state’s

capital sentencing system). Now, however, this Court must

construe a federal statute. Construing an arguably ambiguous

federal statute is a different task from deciding whether a state

statute, as authoritatively construed by the state’s high court,

has crossed the constitutional line. The latter task involves

delicate questions of federalism and judicial restraint.? Statu-

tory construction, however, does not cross the state-federal line,

2. The surfeit of constitutional rules in this area has already stifled innovation.

Anyone who proposes an improvement to a state's capital sentencing procedure

is confronted with the objection that the existing statute has been upheld, and

any change will produce a new constitutional challenge.

and the result can be changed by Congress if it proves to be

unwise. Policy considerations therefore play a larger role here.

“In expounding a statute, we must not be guided by a single

sentence or member of a sentence, but look to the provisions of

the whole law, and to its object and policy.” United States v.

Heirs of Boisdoré, 8 How. (49 U. 8.) 113, 122 (1850)? The

object and policy of the statute tracks this Court’s Eighth

Amendment jurisprudence. Its purpose is not to give the

defendant every possible opportunity to escape the death

penalty, but rather to build a structured system of guided

discretion, to make the implementation of capital punishment

as evenhanded as possible within the constraints of the individ-

ualization requirement.

Congress’s preference for evenhandedness over maximum

leniency is evident at several points. In 18 U.S. C. § 3593(a),

Congress authorized victim impact evidence to correct the

imbalance which results from individualizing the defendant but

not the victim. See Payne v. Tennessee, 501 U. S. 808, 825-826

(1991). Subsection (c) of that section imposes the burden of

proof of mitigating factors on the defendant, thus reducing the

chance that a factor would be found merely by the failure of the

prosecution to rebut it. Subsection (e) directs the jury to the

relatively structured question of whether mitigating factors

outweigh aggravating, rather than the open-ended question of

what sentence is appropriate. Significantly, language from

earlier bills that the sentencer is never required to impose the

death sentence was not included. Cf. H. R. Rep. No. 103-467,

103d Cong., 2d Sess., 21-22 (1994) (dissenting view of Mr.

Hyde et al.) (arguing that the “never required” language leads to

“unbridled and arbitrary discretion”).

Finally, Congress made the jury’s recommendation of a

death sentence binding on the trial court, rather than giving the

3. This Court has quoted this maxim many times over the years. See, e.g., Pilot

Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987); Dunn v. Commodity Futures

Trading Comm'n, 519 U.S. 465, 478 (1997).

judge a broad override power. See 18 U. S. C. §3594. An

override would make the imposition of a death sentence depend,

in a large degree, upon the defendant’s “luck of the draw” in

assignment of judges. This effect would be particularly

pronounced in the federal system, with life tenure and no

peremptory challenge of judges.

For the reasons stated in part II, infra, amicus believes this

statute, on its face, requires a unanimous jury, and it provides

for discharge of the jury and impaneling a new one in the event

of deadlock. If, however, the Court should find any ambiguity

in this regard, amicus submits that the Court should choose the

interpretation which promotes evenhandedness in sentencing.

That is the interpretation which minimizes the likelihood of a

capricious or biased result in either direction.

In reviewing individual cases, appellate courts generally

presume that jurors follow their instructions. That presumption

“is a pragmatic one,” and it is not rooted in an “absolute

certitude” that it is true. See Richardson v. Marsh, 481 U. S.

200, 211 (1987). The presumption has its limits, and some-

times courts must recognize that jurors may not follow their

instructions. See ibid. (Bruton rule).

In capital sentencing, jurors are instructed to base their

verdicts solely on the authorized aggravating and mitigating

factors. Factors which do not belong in the mix include “mere

sympathy,” i.e., “emotional responses that are not rooted in the

aggravating and mitigating evidence,” Brown, supra, 479 U. S.,

at 542, beliefs or associations of the defendant, however vile

they may be, if they are not relevant to an aggravating circum-

stance, Dawson v. Delaware, 503 U. S. 159, 167 (1992), and,

of course, the race of the defendant or of the victim. Jurors

should also not vote a particular way because they are so

adamantly opposed to or in favor of capital punishment that

they cannot or will not follow the law as set forth in the

instructions. Wainwright v. Witt, 469 U. S. 412, 424 (1985)

allows the removal of the hard core opponents, and Morgan v.

Illinois, 504 U. 8. 719, 729 (1992) requires removal of the hard

—a

core supporters. Yet we all know that some such jurors do slip

through, either because they lie in voir dire or because they do

not fully realize the depth of their own feelings until the

moment of truth. See Witt, 469 U. S., at 425-426.

A verdict which results from the idiosyncracies of jurors,

rather than from the actual balance of aggravating and mitigat-

ing factors, is neither evenhanded nor individualized. Such

verdicts do not apply the law equally to similarly situated

defendants, and they are not based on the circumstances of the

crime or the defendant’s character or record. Cf. Lockett v.

Ohio, 438 U. S. 586, 604 (1978) (plurality opinion).

The danger of such a verdict would be greatly magnified by

allowing a single juror to veto the considered decision of the

other eleven. The Witt-excludable jurors who occasionally slip

through voir dire would produce random life sentences for a

few defendants who deserve death, based not on the defendant’ s

culpability but only on his luck in getting such a juror. That

would be a macabre lottery. No advanced statistics are needed

to understand that if it is unusual for one such juror to be seated

on a panel of twelve, the odds against such jurors making up all

or most of a panel are astronomical. Thus, a requirement that

the jury be unanimous, with a mistrial and new jury if it

deadlocks, guards against this kind of randomness.

The arbitrariness of a single-juror veto was an important

factor in the decisions in Mills v. Maryland, 486 U. S. 367

(1988) and McKoy v. North Carolina, 494 U. 8. 433 (1990).

The jury instructions in Mills arguably required the jury to

disregard a mitigating circumstance if it could not agree

unanimously on the existence of that circumstance. 486 U. S..

at 371. A “no” finding on all mitigating circumstances required

a verdict of death. See id., at 389. Thus, the defendant raised

the hypothetical possibility that eleven jurors could believe that

penalty was wholly inappropriate, yet the single holdout juror

could force a death sentence. /d., at 373-374. Such a veto

power, the Court said, would be “the height of arbitrariness.”

10

Id., at 374. “{I}t's difficult to imagin{e) a more arbitrary system

than the luck of the draw: Do I get one juror?” McKoy, 494

U.S., at 453 (Kennedy, J., concurring in the judgment) (quoting

oral argument in Mills).

It is not difficult at all, though, to imagine an equally

arbitrary system. A system that allows a single juror out of

twelve to block a death sentence is just as arbitrary as one that

allows a single juror to impose it. A reverse-Mills arbitrariness

could arise if a single juror found a mitigating circumstance

true, and insisted it outweighed the aggravating circumstances,

even though the other eleven were absolutely convinced it was

false.’ The choice between life or death should not depend

upon the presence of one particularly gullible juror who is

willing to accept “expert” testimony that the vast majority of

people would reject as nonsense.

The Constitution may tolerate more arbitrariness on one side

than it does on the other, but that does not make it good policy.

Arbitrariness is an undesirable feature of a capital sentencing

system, and it should not be read into a statute unless the

language unmistakably requires it. Every presumption should

be in favor of evenhandedness and against arbitrariness.

Even worse than arbitrariness is bias. A single juror with

veto power might exercise that power based on a racist belief

that killing a black person is not as great an offense as killing a

white person. See supra, at 5. The requirement of unaninimity

reduces the chance of such a verdict. This effect was recog-

nized in Congressional hearings on an earlier bill with similar

language:

“Mr. DENNIS [Assistant Attorney General]. ‘Well, first of

all, as a general proposition—and again, based on my own

experiences—lI think juries try to be conscientious. First of

all, not everyone is responsible, but we have many proce-

4. In the present case, for example, the psychiatric testimony was rejected by

eleven jurors. See supra, at 2.

dures with regard to ensuring the fairness of the jury, and

not all of them are even related to the death penalty.

[Description of voir dire, challenges, and 18 U. S. C.

§ 3593(f) omitted. ]

“ “I think that is the way, and I think the bill is absolutely on

target with how you deal with the potential that a verdict

might be based upon bias. Remember, it has to be unani-

mous. You know, one person might be biased, but the

chances that one person is going to be able to persuade | 1

others to his or her position based on bias— —’

“Mr. McCOLLUM. ‘That's what has always bothered— —’

“Mr. DENNIS. ‘I think, as a practical matter of understand-

ing the procedures, you have to realize that these procedures

should be adequate to the task.’

“Mr. MCCOLLUM. ‘You know, that’s what has always

bothered me about the statistics on this point, even though

I don’t doubt that there has been racial bias in sentencing in

parts of the country from time to time. But overall, with the

unanimous jury requirement, it seems to me, in this day and

age, that | believe we have improved dramatically in regard

to racial bias in this country. | just have a hard time believ-

ing there would be very many cases in this country ever in

the future where you get a full jury that would be racially

biased.’ " Federal Death Penalty Legislation: Hearings

before the Subcommittee on Crime, Committee on the

Judiciary, House of Representatives, 101st Cong., 2d Sess.,

ser. 95, pp. 358-359 (1990) (emphasis added).

If the unanimity requirement is going to protect minority

victims as well as minority defendants, then it must preclude

nonunanimous life sentences as well as nonunanimous death

sentences.

“Jury unanimity, it is true, is an accepted, vital mechanism

to ensure that real and full deliberation occurs in the jury

room, and that the jury’s ultimate decision will reflect the

12

conscience of the community.” McKoy, supra, 494 U.S.,

at 452 (Kennedy, J., concurring in the judgment).

A statute which provides that, when a jury deadlocks 11-1 for

death, the decision of the one prevails over the decision of the

eleven would throw away these important values. Congress has

the power to enact such a statute, but courts should not lightly

assume it has done so. The presumption should work the other

way.

Il. 18 U. S. C. § 3593 allows the trial court to impanel a

new jury if a jury deadlocks over the sen ence.

A. Statutory Text.

The claim that the inability of the jury to agree on a unani-

mous verdict eliminates the possibility of a death sentence is

inconsistent with the text of the relevant statutes. The relevant

language is found in two portions of 18 U. S. C. § 3593 and in

18 U.S. C. §3594. When read together in their proper context,

these three provisions provide unambiguous textual support for

the Court of Appeals’ decision. See Conroy v. Aniskoff, 507

U. S. 511, 515 (1993) (statute must be read as a whole as the

meaning of the language depends upon its context).

The first pertinent provision is 18 U. S. C. § 3593(e), which

sets forth the process by which the jury comes to its sentencing

recommendation. Subdivision (e) begins by describing the

sentencer’s duty to weigh the aggravating and any mitigating

factors and thus determine whether death is appropriate. This

provision concludes with the first relevant passage:

“Based upon this consideration [of aggravating and mitigat-

ing factors], the jury by unanimous vote, or if there is no

jury, the court, shall recommend whether the defendant

should be sentenced to death, to life imprisonment without

the possibility of release or some other lesser sentence.”

(Emphasis added.)

13

This establishes a unanimity requirement for any jury-

imposed sentence. “Unanimous vote” comes before “shall

recommend,” thus requiring all recommendations made under

this section to be unanimous. Since the jury can recommend

any possible sentence under this provision (“death, to life

imprisonment without possibility of release, or some lesser

sentence”), any sentence recommendation by a jury must be

unanimous.

Section 3593(e) does not, however, explain what shall be

done if the jury cannot reach a unanimous recommendation.

Defendant looks to another statute, 18 U. S. C. § 3594, for that

answer:

“Upon a recommendation under section 3593(e¢) that the

defendant should be sentenced to death or life imprisonment

without possibility of release, the court shall sentence the

defendant accordingly. Otherwise, the court shall impose

any lesser sentence that is authorized by law. Notwithstand-

ing any other law, if the maximum term of imprisonment

for the offense is life imprisonment, the court may impose

a sentence of life imprisonment without possibility of

release.”

Defendant focuses upon the term “otherwise.” He asserts

that since a hung jury is a result other than a recommendation

of death or life without parole, it must be one of the results

encompassed by the “otherwise” clause. See Brief for Peti-

tioner 34. A hung jury would require a life-without-release

sentence if that was the minimum and some lesser sentence if

a lesser sentence is authorized. See Brief for Petitioner 35, and

n. 27.

The first problem with this reading of the statute is its

potentially absurd result. If a jury was deadlocked at eleven

votes for death and one vote for life without parole, the court

would seemingly be required to sentence defendant to some

sentence “lesser” than these two options in any case where a

lesser sentence is authorized. Under defendant's expansive

reading of this clause, the court would thus be forced (“the court

14

shall impose,” ibid. (emphasis added)) to impose a sentence less

severe than the least any juror thought appropriate. As this

Court long ago recognized:

“frequently words of general meaning are used in a statute,

words broad enough to include an act in question, and yet a

consideration . . . of the absurd results which follow from

giving such broad meaning to the words, makes it unreason-

able to believe that the legislator intended to include the

particular act.” Church of Holy Trinity v. United States,

143 U. S. 457, 459 (1892); see also Public Citizen v.

Department of Justice, 491 U.S. 440, 454 (1989).

Congress could not have intended the absurd result which

defendant's reading mandates.

The last sentence of section 3594 does provide a possible

way to alleviate this absurdity:

“Notwithstanding any other law, if the maximum term of

imprisonment for the offense is life imprisonment, the court

may impose a sentence of life imprisonment without

possibility of release.”

This sentence provides a way for a court to impose a life

without possibility of parole sentence if the “lesser sentence”

could be life. This reduces but does not eliminate the possibil-

ity of the above-mentioned absurd result. Since the last

sentence of section 3594 is permissive, not mandatory, the trial

court would still be authorized to impose “any lesser sentence”

even if no juror agreed with that sentence.

Defendant's interpretation of section 3594 has additional

textual problems. Section 3593(b) allocates whether the

sentencing hearing is before a judge or jury. The relevant

portion states that:

“The hearing shall be conducted —

“(1) before the jury that determined the defendant's guilt;

(2) before a jury impaneled for the purpose of the hearing

|

15

“. ..(C) the jury that determined the defendant's guilt was

discharged for good cause ... .”

An inability to reach a unanimous verdict is good cause to

discharge the jury and impanel a new one. Generally, it is

within the discretion of the trial court to declare a mistrial if the

jury cannot agree on a verdict. See, e.g., 26 J. Moore, et al.,

Moore's Federal Practice § 631.1 1[1], pp. 631-33 (3d ed. 1998);

United States v. Kramer, 955 F. 2d 479, 490 (CA7 1992). A

hung jury constitutes a “manifest necessity” to terminate the

trial and retry defendant without violating the Double Jeopardy

Clause. See Richardson v. United States, 468 U.S. 317, 323-

324 (1984). A hung jury easily satisfies any reasonable

definition of “good cause,” particularly in light of the strong

policy reasons for encouraging unanimous verdicts in capital

sentencing. See part I, ante, at 4-12.

As the federal capital sentencing procedure established in

section 3593(b) contemplates retrying the penalty phase if the

first sentencing jury cannot reach a unanimous verdict, the

deadlocked jury does not come within section 3594's “other-

wise” clause. Text cannot be read in isolation; “a statute is to

be read as a whole... .” King v. St. Vincent's Hosp., 502 U.S.

215, 221 (1991). “ ‘Words are not pebbles in alien juxtaposi-

tion; they have only a communal existence; and not only does

the meaning of each interpenetrate the other, but all in their

aggregate, take their purport from the setting in which they are

used...” /bid. (quoting NLRB v. Federbush Co., 121 F. 2d

954, 957 (CA2 1941) (L. Hand, J.)). Defendant's “otherwise”

cannot be read alone. That term and the following sentence

must be read in the context of the entire statutory scheme.

Section 3594's “otherwise” clause is best read as applying

only to those unanimous recommendations of sentences other

than death or life without parole. This interpretation avoids the

possible absurd result from applying the “otherwise” clause in

a jury deadlocked between death and life without parole. See

ante, at 13. This reading is also harmonious with the language

following “otherwise”—“the court shall impose any lesser

16

sentence that is authorized by law.” 18 U.S. C. § 3594. Since

the jury has already recommended some “lesser sentence,” there

will be much less tension between the jury’s recommendation

and the court’s sentence than under defendant’s reading of this

Statute.

The doctrine of lenity does not change the analysis. This

doctrine is not an ironclad rule. Instead, it operates more like a

gentle nudge, pushing a closely balanced interpretation of an

unquestionably ambiguous statute towards defendant. It

“is not applicable unless there is a ‘grievous ambiguity or

uncertainty in the language and structure of the act,’

Huddleston vy. United States, 415 U. S. 814, 831 (1974),

such that even after a court has ‘ “seize[d] every thing from

which aid can be derived,” ° it is still ‘left with an ambigu-

ous statute.’ ” Chapman v. United States, 500 U. S. 453,

463 (1991) (quoting United States v. Bass, 404 U. S. 336,

347 (1971) (quoting United States v. Fisher, 2 Cranch 358,

386 (1805))).

The present case does not involve such unsolvable ambiguity.

In addition, the purpose of the rule of lenity is to ensure that

the law gives people fair warning as to what the law prohibits

and what the penalties are for violations. United States v.

Lanier, 520 U.S. 259, 266 (1997). It is closely related to the Ex

Post Facto Clause and the due process rule of Bouie v. City of

Columbia, 378 U. S. 347, 353-354 (1964). See Lanier, 520

U. S., at 266-267. These related “fair warning” rules simply do

not apply to matters of procedure; they are limited to substan-

tive law. Legislatures and courts can and do change procedure

“retroactively” to the detriment of criminal defendants. See

Miller v. Florida, 482 U.S. 423, 433 (1987) (“no ex post facto

violation occurs if the change in the law is merely procedural”);

Teague v. Lane, 489 U. S. 288, 311 (1989) (plurality opinion)

(applying new rule on “new rules” to pending case). In civil

matters as well, the rule of statutory construction that raises a

presumption against retroactivity does not apply to “[c]hanges

in procedural rules” which “regulate secondary rather than

17

primary conduct... .” Landgraf vy. USI Film Products, 511

U. S. 244, 275 (1994). The reason, again, is the “diminished

reliance interests in matters of procedure.” /bid.

The rule of lenity shares its basic purpose with these kindred

doctrines, and it should share the same limitation. It has little

or no application to rules of procedure; it applies to the rules

that define crimes and establish punishments. Statutes of

procedure should be construed evenhandedly, without favortism

to either side.

In summary, section 3593(e) gives the jury three options on

the sentence and requires it to reach a unanimous verdict on the

choice. Section 3594 addresses only the final product of the

jury process, instructing the trial court what to do with each of

the three permitted outcomes. It does not address the conse-

quences of the jury’s inability to reach unanimity. That issue is

addressed by section 3593(b)(2)(C), which provides for a

second jury.

B. Legislative History.

In part II A of his brief, defendant argues that the legislative

history of the statute supports his interpretation. Yet he does

not cite any history of the bill that actually passed. Instead, he

cites a report on another bill. See H. R. Rep. No. 103-467, 103d

Cong., 2d Sess., 9 (1994) (report accompanying H. R. 4035).

A weaker argument on legislative history is difficult to imagine.

The language in question did not originate with H. R. 4035,

which was the subject of this report. Substantially the same

language goes back at least as far as Senate Bill 32 in 1989.

See, e.g., S. Rep. No. 101-170, 101st Cong., Ist Sess., 10-12

(1989). H. R. 4035 and its committee report reached the House

floor, 140 Cong. Rec. H2217 (daily ed. April 12, 1994), and

went no further. That is the last mention of it in the Congres-

sional Record.

“The purpose of a committee report is to provide the

Members of Congress who have not taken part in the

committee’s deliberations with a summary of the provisions

of the bill and the reasons for the committee’s recommenda-

tion that the bill should become law.” Chicago v. Environ-

mental Defense Fund, 511 U. S. 328, 345, n. 7 (1994)

(Stevens, J., dissenting).

The premise that legislators are aware of and rely on the

committee report has been questioned even when the report

relates to the same bill. See United States v. R. L. C., 503 U. S.

291, 309 (1992) (Scalia, J., concurring in part and concurring in

the judgment). Perhaps this premise, like that of jurors follow-

ing their instructions, see ante, at 8, is accepted more as a

practical matter than on the belief it is true. The premise loses

any connection with reality, though, when the report in question

relates to a bill which was neither the origin of the language nor

the bill actually voted on. All we have here is an isolated

statement buried in a committee report on a bill that went

nowhere, interpreting language that had been bouncing around

Congress for half a decade.*

United States v. Gonzales, 520 U.S. 1 (1997) is instructive

on the limitations of legislative history. In that case, the

question was whether a federal firearms sentence could run

concurrently with a state sentence, despite the plain language of

the statute forbidding concurrent running. /d., at 2-3. In the

present case, the question is whether the jury can produce a

binding result without being unanimous, despite the unequivo-

cal statutory command that it decide on the sentence “by

unanimous vote.” See 18 U.S. C. § 3593(e).

In Gonzales, as in the present case, the defendant relied on

a “snippet of legislative history.” 520 U. S., at 6. (Unlike the

present case, Gonzales was at least relying on the history of the

bill that actually passed. /bid.) The Court was unimpressed.

The two statutes in question “clash only if we engraft onto

5. In part | of this brief, we cite reports and hearings on some earlier bills. Lest we

be accused of inconsistency, we note at this point that we cite these materials

only for general policy issues. We make no claim that they are definitive

legislative history of H. R. 3355.

4 te

19

§ 924(c) a requirement found only in a single sentence buried in

the legislative history .... We therefore follow the text, rather

than the legislative history, of §924(c).” /d., at 7-8.

Similarly, defendant Jones asks the Court to use a single

sentence of legislative history to make section 3594 contradict

the clear command of section 3593(e), that only a unanimous

jury can decide the sentence. The Court’s response should be

the same. The statutes can and should be construed in a manner

which makes them consistent with each other. The isolated

snippet of history, an interpretation by a committee staffer

buried in a report on a different bill never voted on by the

House, should be brushed aside as inconsequential.

CONCLUSION

The decision of the Court of Appeals, to the extent it

rejected defendant’s proffered instruction on the consequences

of jury deadlock, should be affirmed.

January, 1999

Respectfully submitted,

KENT S. SCHEIDEGGER*

CHARLES L. HOBSON

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation