Supreme Court of the United States
Decided July 6, 1983
Justice O’Connor, For the Court
|Topic: Criminal Procedure*||Court vote: 5–4|
Click any Justice for detailJoining O'Connor opinion: Chief Justice BURGER Justice POWELL Justice REHNQUIST Justice WHITE
|Citation: 463 U.S. 992||Docket: 81–1893||Audio: Listen to this case's oral arguments at Oyez|
* As categorized by the Washington University Law Supreme Court Database
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JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to consider the constitutionality under the Eighth and Fourteenth Amendments of instructing a capital sentencing jury regarding the Governor's power to commute a sentence of life without possibility of parole. Finding no constitutional defect in the instruction, we reverse the decision of the Supreme Court of California and remand for further proceedings.
On the night of June 2, 1979, respondent Marcelino Ramos participated in the robbery of a fast-food restaurant where he was employed as a janitor. As respondent's codefendant placed a food order, respondent entered the restaurant, went behind the front counter into the work area, ostensibly for the purpose of checking his work schedule, and emerged with a gun. Respondent directed the two employees working that night into the restaurant's walk-in refrigerator and ordered them to face the back wall. Respondent entered and emerged from the refrigerator several times, inquiring at one point about the keys to the restaurant safe. When he entered for the last time, he instructed the two employees to kneel on the floor of the refrigerator, to remove their hats, and to pray. Respondent struck both on the head and then shot them, wounding one and killing the other.
Respondent was charged with robbery, attempted murder, and first-degree murder. Defense counsel presented no evidence at the guilt phase of respondent's trial, and the jury returned a verdict of guilt on all counts. Under California law, first-degree murder is punishable by death or life imprisonment without the possibility of parole where an alleged "special circumstance" is found true by the jury at the guilt phase. [ Footnote 1 ] At the separate penalty phase, respondent presented extensive evidence in an attempt to mitigate punishment. [ Footnote 2 ] In addition to requiring jury instructions on aggravating and mitigating circumstances, [ Footnote 3 ] California law requires that the trial judge inform the jury that a sentence of life imprisonment without the possibility of parole may be commuted by the Governor to a sentence that includes the possibility of parole. [ Footnote 4 ] At the penalty phase of respondent's trial, the judge delivered the following instruction:
You are instructed that, under the State Constitution, a Governor is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime. Under this power, a Governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.
Tr. 1189-1190. [ Footnote 5 ] The jury returned a verdict of death.
On appeal, the Supreme Court of California affirmed respondent's conviction, but reversed the death sentence, concluding that the Briggs Instruction required by Cal.Penal Code Ann. § 190.3 (West Supp.1983) violated the Federal Constitution. 30 Cal.3d 553, 639 P.2d 908 (1982). The court found two constitutional flaws in the instruction. First, it invites the jury to consider factors that are foreign to its task of deciding whether the defendant should live or die. According to the State Supreme Court, instead of assuring that this decision rests on "consideration of the character and record of the individual offender and the circumstances of the particular offense," Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 304 (1976), the instruction focuses the jury's attention on the Governor's power to render the defendant eligible for parole if the jury does not vote to execute him, and injects an entirely speculative element into the capital sentencing determination. Second, the court concluded that, because the instruction does not also inform the jury that the Governor possesses the power to commute a death sentence, it leaves the jury with the mistaken belief that the only way to keep the defendant off the streets is to condemn him to death. Accordingly, the court remanded for a new penalty phase. [ Footnote 6 ]
We granted certiorari, 459 U.S. 821 (1982), and now reverse and remand. [ Footnote 7 ]
In challenging the constitutionality of the Briggs Instruction, respondent presses upon us the two central arguments advanced by the Supreme Court of California in its decision. He contends (1) that a capital sentencing jury may not constitutionally consider [ Footnote 8 ] possible commutation, and (2) that the Briggs Instruction unconstitutionally misleads the jury by selectively informing it of the Governor's power to commute one of its sentencing choices but not the other. Respondent's first argument raises two related but distinct concerns - viz., that the power of commutation is so speculative a factor that it injects an unacceptable level of unreliability into the capital sentencing determination, and that consideration of this factor deflects the jury from its constitutionally mandated task of basing the penalty decision on the character of the defendant and the nature of the offense. We address these points in 463 U. S. S. 1005|>II-C, infra, and respondent's second argument in 463 U. S. infra. Before turning to the specific contentions of respondent's first argument, however, we examine the general principles that have guided this Court's pronouncements regarding the proper range of considerations for the sentencer in a capital case.
The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination. [ Footnote 9 ] In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court's principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty. In Gregg v. Georgia, 428 U. S. 153 (1976), and its companion cases, [ Footnote 10 ] the Court reviewed the capital sentencing schemes of five States to determine whether those schemes had cured the constitutional defects identified in Furman v. Georgia, 408 U. S. 238 (1972). In Gregg itself, the joint opinion of JUSTICES Stewart, POWELL, and STEVENS concluded that the Georgia sentencing scheme met the concerns of Furman by providing a bifurcated proceeding, instruction on the factors to be considered, and meaningful appellate review of each death sentence. 428 U.S. at 428 U. S. 189 -19. Satisfied that these procedural safeguards "suitably directed and limited" the jury's discretion "so as to minimize the risk of wholly arbitrary and capricious action," id. at 428 U. S. 189, the joint opinion did not undertake to dictate to the State the particular substantive factors that should be deemed relevant to the capital sentencing decision. Indeed, the joint opinion observed:
It seems clear that the problem [of channeling jury discretion] will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.
Id. at 428 U. S. 192 (emphasis added). See also id. at 428 U. S. 176 ("The deference we owe to the decisions of the state legislatures under our federal system... is enhanced where the specification of punishments is concerned, for these are peculiarly questions of legislative policy'"). [ Footnote 11 ] It would be erroneous to suggest, however, that the Court has imposed no substantive limitations on the particular factors that a capital sentencing jury may consider in determining whether death is appropriate. In Gregg itself, the joint opinion suggested that excessively vague sentencing standards might lead to the arbitrary and capricious sentencing patterns condemned in Furman. 428 U.S. at 428 U. S. 195, n. 46. [ Footnote 12 ] Moreover, in Woodson v. North Carolina, 42 U. S. 20 (1976), the plurality concluded that a State must structure its capital sentencing procedure to permit consideration of the individual characteristics of the offender and his crime. [ Footnote 13 ] This principle of individualization was extended in Lockett v. Ohio, 438 U. S. 586 (1978), where the plurality determined that
the Eighth and Fourteenth Amendments require that the sentencer [in a capital case] not be precluded 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 sentence less than death.
Id. at 438 U. S. 604 (emphasis in original; footnotes omitted). [ Footnote 14 ] Finally, in Gardner v. Florida, 430 U. S. 349 (1977), a plurality of the Court held that a death sentence may not be imposed on the basis of a presentence investigation report containing information that the defendant has had no opportunity to explain or deny.
Beyond these limitations, as noted above, the Court has deferred to the State's choice of substantive factors relevant to the penalty determination. In our view, the Briggs Instruction does not run afoul of any of these constraints.
Addressing respondent's specific arguments, we find unpersuasive the suggestion that the possible commutation of a life sentence must be held constitutionally irrelevant [ Footnote 15 ] to the sentencing decision and that it is too speculative an element for the jury's consideration. On this point, we find Jurek v. Texas, 428 U. S. 262 (1976), controlling.
The Texas capital sentencing system upheld in Jurek limits capital homicides to intentional and knowing murders committed in five situations. Id. at 428 U. S. 268. Once the jury finds the defendant guilty of one of these five categories of murder, the jury must answer three statutory questions. [ Footnote 16 ] If the jury concludes that the State has proved beyond a reasonable doubt that each question is answered in the affirmative, then the death sentence is imposed. In approving this statutory scheme, the joint opinion in Jurek rejected the contention that the second statutory question -requiring consideration of the defendant's future dangerousness -was unconstitutionally vague because it involved prediction of human behavior.
It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system.... And any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose. For those sentenced to prison, these same predictions must be made by parole authorities. The task that a Texas jury must perform in answering the statutory question in issue is thus basically no different from the task performed countless times each day throughout the American system of criminal justice. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.
Id. at 428 U. S. 274 -276 (footnotes omitted).
By bringing to the jury's attention the possibility that the defendant may be returned to society, the Briggs Instruction invites the jury to assess whether the defendant is someone whose probable future behavior makes it undesirable that he be permitted to return to society. Like the challenged factor in Texas' statutory scheme, then, the Briggs Instruction focuses the jury on the defendant's probable future dangerousness. [ Footnote 17 ] The approval in Jurek of explicit consideration of this factor in the capital sentencing decision defeats respondent's contention that, because of the speculativeness involved, the State of California may not constitutionally permit consideration of commutation. [ Footnote 18 ]
Nor is there any diminution in the reliability of the sentencing decision of the kind condemned in Gardner v. Florida, 430 U. S. 349 (1977). In Gardner, the Court reversed a death sentence that had been imposed in part on the basis of a confidential portion of a presentence investigation report that had not been disclosed to either the defendant or his counsel. Because of the potential that the sentencer might have rested its decision in part on erroneous or inaccurate information that the defendant had no opportunity to explain or deny, the need for reliability in capital sentencing dictated that the death penalty be reversed. Gardner provides no support for respondent. The Briggs Instruction gives the jury accurate information of which both the defendant and his counsel are aware, and it does not preclude the defendant from offering any evidence or argument regarding the Governor's power to commute a life sentence. [ Footnote 19 ]
Closely related to, yet distinct from, respondent's speculativeness argument is the contention that the Briggs Instruction is constitutionally infirm because it deflects the jury's focus from its central task. Respondent argues that the commutation instruction diverts the jury from undertaking the kind of individualized sentencing determination that, under Woodson v. North Carolina, 428 U.S. at 428 U. S. 304, is "a constitutionally indispensable part of the process of inflicting the penalty of death."
As we have already noted, supra, at 463 U. S. 1003, as a functional matter, the Briggs Instruction focuses the jury's attention on whether this particular defendant is one whose possible return to society is desirable. In this sense, then, the jury's deliberation is individualized. The instruction invites the jury to predict not so much what some future Governor might do, but more what the defendant himself might do if released into society.
Any contention that injecting this factor into the jury's deliberations constitutes a departure from the kind of individualized focus required in capital sentencing decisions was implicitly rejected by the decision in Jurek. Indeed, after noting that consideration of the defendant's future dangerousness was an inquiry common throughout the criminal justice system, the joint opinion of JUSTICES Stewart, POWELL, and STEVENS observed:
What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.
428 U.S. at 428 U. S. 276. As with the Texas scheme, the California sentencing system ensures that the jury will have before it information regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant's character, background, history, mental condition, and physical condition. Cal.Penal Code Ann. § 190.3 (West Supp.1983). [ Footnote 20 ]
Respondent also relies on Beck v. Alabama, 447 U. S. 625 (1980), as support for his contention that the Briggs Instruction undermines the jury's responsibility to make an individualized sentencing determination. In Beck, the Court held that the jury in a capital case must be permitted to consider a verdict of guilt of a noncapital offense where the evidence would support such a verdict. In disapproving the Alabama statute that precluded giving a lesser included offense charge in capital cases, the Court concluded that the chief flaw of the statute
is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.
Id. at 447 U. S. 642. The failure to give a lesser included offense instruction "diverted" the jury in two ways: a jury might convict a defendant of a capital offense because of its belief that he is guilty of some crime, or, given the mandatory nature of the death penalty under Alabama law, the jury might acquit because it does not think that the defendant's crime warrants death. Id. at 447 U. S. 642 -643. According to the respondent, the Briggs Instruction, like the removal of the lesser included offense option in Beck, predisposes the jury to act without regard to whether the death penalty is called for on the facts before it.
We are unconvinced that the Briggs Instruction constrains the jury's sentencing choice in the manner condemned in Beck. Restricting the jury in Beck to the two sentencing alternatives -conviction of a capital offense or acquittal -in essence placed artificial alternatives before the jury. The unavailability of the "third option" thereby created the risk of an unwarranted conviction. By contrast, the Briggs Instruction does not limit the jury to two sentencing choices, neither of which may be appropriate. Instead, it places before the jury an additional element to be considered, along with many other factors, in determining which sentence is appropriate under the circumstances of the defendant's case.
More to the point, however, is the fundamental difference between the nature of the guilt/innocence determination at issue in Beck and the nature of the life/death choice at the penalty phase. As noted above, the Court in Beck identified the chief vice of Alabama's failure to provide a lesser included offense option as deflecting the jury's attention from
the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime.
Id. at 447 U. S. 642 (emphasis added). In returning a conviction, the jury must satisfy itself that the necessary elements of the particular crime have been proved beyond a reasonable doubt. In fixing a penalty, however, there is no similar "central issue" from which the jury's attention may be diverted. [ Footnote 21 ] Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, as did respondent's jury in determining the truth of the alleged special circumstance, the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment. In this sense, the jury's choice between life and death must be individualized.
But the Constitution does not require the jury to ignore other possible... factors in the process of selecting... those defendants who will actually be sentenced to death.
Zant v. Stephens, 462 U. S. 862, 462 U. S. 878 (1983) (footnote omitted). As we have noted, the essential effect of the Briggs Instruction is to inject into the sentencing calculus a consideration akin to the aggravating factor of future dangerousness in the Texas scheme. See supra at 463 U. S. 1003. This element
is simply one of the countless considerations weighed by the jury in seeking to judge the punishment appropriate to the individual defendant.
462 U.S. at 462 U. S. 900 (REHNQUIST, J., concurring in judgment). [ Footnote 22 ]
In short, the concern of Beck regarding the risk of an unwarranted conviction is simply not directly translatable to the deliberative process in which the capital jury engages in determining the appropriate penalty, where there is no single determinative issue apart from the general concern that the penalty be tailored to the individual defendant and the offense.
Finally, we emphasize that informing the jury of the Governor's power to commute a sentence of life without possibility of parole was merely an accurate statement of a potential sentencing alternative. To describe the sentence as "life imprisonment without possibility of parole" is simply inaccurate when, under state law, the Governor possesses authority to commute that sentence to a lesser sentence that includes the possibility of parole. The Briggs Instruction thus corrects a misconception and supplies the jury with accurate information for its deliberation in selecting an appropriate sentence. [ Footnote 23 ] See also n 18, supra.
Having concluded that a capital sentencing jury's consideration of the Governor's power to commute a life sentence is not prohibited by the Federal Constitution, we now address respondent's contention that the Briggs Instruction must be held unconstitutional because it fails to inform jurors also that a death sentence may be commuted. [ Footnote 24 ] In essence, respondent complains that the Briggs Instruction creates the misleading impression that the jury can prevent the defendant's return to society only by imposing the death sentence, thus biasing the jury in favor of death. Respondent therefore concludes that,
[i]f... commutation is a factor properly to be considered by the jury, then basic principles of fairness require that full disclosure be made with respect to commutation.
Brief for Respondent 35-36.
Thus, according to respondent, if the Federal Constitution permits the jury to consider possible commutation of a life sentence, the Federal Constitution requires that the jury also be instructed that a death sentence may be commuted. We find respondent's argument puzzling. [ Footnote 25 ] If, as we must assume, respondent's principal objection is that the impact of the Briggs Instruction is to skew the jury toward imposing death, we fail to see how an instruction on the Governor's power to commute death sentences as well as life sentences restores the situation to one of "neutrality." Although such an instruction would be "neutral" in the sense of giving the jury complete and factually accurate information about the commutation power, it would not "balance" the impact of the Briggs Instruction, even assuming, arguendo, that the current instruction has any impermissible skewing effect. Disclosure of the complete nature of the commutation power would not eliminate any skewing in favor of death or increase the reliability of the sentencing choice. A jury concerned about preventing the defendant's potential return to society will not be any less inclined to vote for the death penalty upon learning that even a death sentence may not have such an effect. In fact, advising jurors that a death verdict is theoretically modifiable, and thus not "final," may incline them to approach their sentencing decision with less appreciation for the gravity of their choice and for the moral responsibility reposed in them as sentencers.
In short, an instruction disclosing the Governor's power to commute a death sentence may operate to the defendant's distinct disadvantage. It is precisely this perception that the defendant is prejudiced by an instruction on the possible commutation of a death sentence that led the California Supreme Court, in People v. Morse, 60 Cal.2d 631, 388 P.2d 33 (1964), to prohibit the giving of such an instruction. [ Footnote 26 ] Thus, state law at the time of respondent Ramos' trial precluded the giving of the "other half " of the commutation instruction that respondent now argues is constitutionally required. [ Footnote 27 ]
Moreover, we are not convinced by respondent's argument that the Briggs Instruction alone impermissibly impels the jury toward voting for the death sentence. Any aggravating factor presented by the prosecution has this impact. As we concluded in 463 U. S. supra, the State is constitutionally entitled to permit juror consideration of the Governor's power to commute a life sentence. This information is relevant and factually accurate, and was properly before the jury. Moreover, the trial judge's instructions "did not place particular emphasis on the role of [this factor] in the jury's ultimate decision." [ Footnote 28 ] Zant v. Stephens, 462 U.S. at 462 U. S. 889 ; cf. id. at 462 U. S. 888 -891. [ Footnote 29 ]
In sum, the Briggs Instruction does not violate any of the substantive limitations this Court's precedents have imposed on the capital sentencing process. It does not preclude individualized sentencing determinations or consideration of mitigating factors, nor does it impermissibly inject an element too speculative for the jury's deliberation. Finally, its failure to inform the jury also of the Governor's power to commute a death sentence does not render it constitutionally infirm. Therefore, we defer to the State's identification of the Governor's power to commute a life sentence as a substantive factor to be presented for the sentencing jury's consideration.
Our conclusion is not intended to override the contrary judgment of state legislatures that capital sentencing juries in their States should not be permitted to consider the Governor's power to commute a sentence. [ Footnote 30 ] It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires. We sit as judges, not as legislators, and the wisdom of the decision to permit juror consideration of possible commutation is best left to the States. We hold only that the Eighth and Fourteenth Amendments do not prohibit such an instruction.
The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
[ Footnote 1 ]
See Cal.Penal Code Ann. § 190.2 (West Supp.1983). The alleged special circumstance found true in respondent's case was commission of the murder during the course of a robbery. § 190.2(a)(17)(i).
[ Footnote 2 ]
Respondent offered evidence to show, inter alia, that his adoptive parents had died while he was young, that he then came under the bad influence of his codefendant, that respondent had mild congenital brain damage, a low intelligence quotient, and borderline schizophrenia, that he was under the influence of alcohol and drugs at the time of the offenses, and that he intended only to "graze" the victims when he shot them.
[ Footnote 3 ]
The jury "shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances" and "shall impose" a sentence of life without possibility of parole if the mitigating circumstances outweigh the aggravating circumstances. Cal.Penal Code Ann. § 190.3 (West Supp.1983).
[ Footnote 4 ]
Ibid. This instruction, referred to hereinafter as the "Briggs Instruction," was incorporated into the California Penal Code as a result of a 1978 voter initiative popularly known as the Briggs Initiative.
[ Footnote 5 ]
The trial judge gave the instruction over the objection of respondent on the ground that the instruction was mandated by legislation. Tr. 718.
[ Footnote 6 ]
In dissent, Justice Richardson concluded that the Briggs Instruction was harmless and nonprejudicial, because it merely informs jurors of information that is a matter of common knowledge. Further, the instruction is relevant because the issue of parole is injected into the sentencing process by one of the alternative punishments the jury must consider: life imprisonment without possibility of parole. In addition, the dissent concluded that the instruction's failure also to inform the jury of the Governor's power to commute a death sentence did not render it constitutionally infirm. In People v. Morse, 60 Cal.2d 631, 388 P.2d 33 (1964), the court had held, on the basis of its supervisory powers, that jurors should not be instructed that a death sentence could be commuted because it reduced the jury's sense of responsibility in imposing a capital sentence. Therefore, the Briggs Instruction should not be struck down because it fails to require an instruction of the type condemned in Morse.
[ Footnote 7 ]
The Supreme Court of California also concluded that certain testimony by the defense psychiatrist was inadmissible as a matter of state evidence law. Over defense objection, at the penalty phase, the prosecutor had been allowed to elicit on cross-examination of the psychiatrist that respondent was aware of the Governor's power to commute a life sentence without parole to a lesser sentence that included the possibility of parole. According to the psychiatrist, respondent had indicated that, were he to be released on parole after 10 or 20 years in prison,
he would probably have built up within himself such feelings of anger and frustration that he would attempt to take revenge on anyone involved in the trial, including the district attorney who prosecuted the case, the judge who presided over it, and the jurors who voted to convict him.
30 Cal.3d 553, 598, 639 P.2d 908, 934 (1982) (footnote omitted). The State Supreme Court ruled that the trial court had abused its discretion in admitting this testimony, because the prejudice created by admission of the testimony outweighed its probative value. See Cal.Evid.Code Ann. § 352 (West 1966).
Respondent argues that this Court should not reach the constitutional issues raised by the State, because the above ruling represents a possible adequate and independent state ground for the State Supreme Court's decision to reverse the death sentence. We find no bar to reaching the federal questions. The State Supreme Court quite clearly rested its reversal of the death sentence solely on the Federal Constitution. 30 Cal.3d at 562, 600, 639 P.2d at 912, 936. Moreover, with respect to its ruling on the evidentiary question, the court did not determine whether this error warranted reversal of the death penalty. It held only that the testimony "should not be admitted if the penalty phase is retried." Id. at 598, n. 22, 639 P.2d at 934, n. 22. Therefore, the adequacy of this ruling to support reversal of the sentence was not addressed by the state court. See Michigan v. Long, post, p. 463 U. S. 1032. Of course, on remand from this Court, the state court is free to determine whether, as a matter of state law, this evidentiary error is a sufficient basis for reversing the death sentence.
In addition, the Supreme Court of California expressly declined to decide whether the Briggs Instruction independently violates any provisions of the State Constitution. 30 Cal.3d at 600, n. 24, 639 P.2d at 936, n. 24. As with the evidentiary issue, of course, the state court may address this question on remand.
[ Footnote 8 ]
The Supreme Court of California construed the Briggs Instruction as inviting capital sentencing juries to consider the commutation power in its sentencing determination. See id. at 699-600, 639 P.2d at 935-936. We view the statute accordingly.
[ Footnote 9 ]
See Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 117 -118 (1982) (O'CONNOR, J., concurring); Beck v. Alabama, 447 U. S. 625, 447 U. S. 637 -638 (1980) (opinion of STEVENS, J., joined by BURGER, C.J., and BRENNAN, Stewart, BLACKMUN, and POWELL, JJ.); Lockett v. Ohio, 438 U. S. 586, 438 U. S. 604 (1978) (opinion of BURGER, C.J., joined by Stewart, POWELL, and STEVENS, JJ.); Gardner v. Florida, 430 U. S. 349, 430 U. S. 357 -358 (1977) (opinion of STEVENS, J., joined by Stewart, and POWELL, JJ.); id. at 430 U. S. 363 -364 (WHITE, J., concurring in judgment); Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
[ Footnote 10 ]
Proffitt v. Florida, 428 U. S. 242 (1976); Jurek v. Texas, 428 U. S. 262 (1976); Woodson v. North Carolina, supra, (plurality opinion); Roberts v. Louisiana, 428 U. S. 325 (1976) (plurality opinion).
[ Footnote 11 ]
Moreover, in approving the sentencing schemes of Georgia, Florida, and Texas, the joint opinions of JUSTICES Stewart, POWELL, and STEVENS did not substitute their views for those of the state legislatures as to the particular substantive factors chosen to narrow the class of defendants eligible for the death penalty. For example, under the Georgia scheme examined in Gregg, at least 1 of 10 specified aggravating circumstances must be found beyond a reasonable doubt before the jury may consider whether death is the appropriate punishment for the individual defendant. 428 U.S. at 428 U. S. 164 -165. By contrast, under the Texas scheme approved in Jurek v. Texas, supra, the State attempted to limit the category of defendants upon whom the death sentence may be imposed by narrowing capital homicides to intentional and knowing murders committed in five particular situations. See id. at 428 U. S. 268. In upholding the Texas scheme, the joint opinion observed:
While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty, as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose.
Id. at 428 U. S. 270.
[ Footnote 12 ]
Cf. Godfrey v. Georgia, 446 U. S. 420 (1980) (reversing death sentence that rested on unconstitutionally broad and vague construction of an aggravating circumstance).
[ Footnote 13 ]
[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
Woodson, supra, at 428 U. S. 304. See also Gregg v. Georgia, 428 U.S. at 428 U. S. 189 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 302 U. S. 55 (1937)).
[ Footnote 14 ]
See also Zant v. Stephens, 462 U. S. 862, 462 U. S. 879 (1983); id. at 462 U. S. 900 (REHNQUIST, J., concurring in judgment); Enmund v. Florida, 458 U. S. 782, 458 U. S. 798 (1982); id. at 458 U. S. 827 -828 (O'CONNOR, J., dissenting); Eddings v. Oklahoma, 455 U.S. at 455 U. S. 110 -112; id. at 455 U. S. 118 (O'CONNOR, J., concurring); id. at 455 U. S. 121 -122 (BURGER, C.J., dissenting).
[ Footnote 15 ]
See also 30 Cal.3d at 596, 639 P.2d at 933 ("[The Briggs Instruction] injects into the sentencing calculus an entirely irrelevant factor..."); id. at 600, 639 P.2d at 935.
[ Footnote 16 ]
The questions are:
'(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; '(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and '(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.' Art. 37.071(b) (Supp.1975-1976).
428 U.S. at 428 U. S. 269.
[ Footnote 17 ]
This analogy between the matters raised in the jurors' minds by the Briggs Instruction and the Texas statutory factor of the defendant's future dangerousness is no "intellectual sleight of hand." Post at 463 U. S. 1029 (BLACKMUN, J., dissenting). To avoid this analogy is to ignore the process of thought that the Briggs Instruction inevitably engenders in the jury's deliberations. To be sure, the Briggs Instruction, by its terms, may incline their thoughts to the probability that the current or some future Governor might commute the defendant's sentence. Nevertheless, whatever the jurors' thoughts on this probability alone, the inextricably linked thought is whether it is desirable that this defendant be released into society. In evaluating this question, the jury will consider the defendant's potential for reform and whether his probable future behavior counsels against the desirability of his release into society.
[ Footnote 18 ]
See also ABA Standards for Criminal Justice 18-2.5(c)(i) (2d ed.1980) (giving as example of legitimate reason for selecting total confinement fact that "[c]onfinement is necessary in order to protect the public from further serious criminal activity by the defendant").
We also observe that, with respect to the relevance of the information conveyed by the Briggs Instruction, the issue of parole or commutation is presented by the language used to describe one of the jury's sentencing choices - i.e., life imprisonment without possibility of parole. The State of California reasonably could have concluded that, while jurors are generally aware of the Governor's power to commute a death sentence, most jurors would not be aware that the Governor also may commute a sentence of life imprisonment without possibility of parole, and that they should be so informed to avoid any possible misconception conveyed by the description of the sentencing alternative.
[ Footnote 19 ]
In dissent, JUSTICE MARSHALL argues that, if a balanced instruction cannot or should not be given, "the solution is not to permit a misleading instruction, but to prohibit altogether any instruction concerning commutation." Post at 463 U. S. 1017 -1018. This observation is incorrect for at least two reasons. First, as discussed below, see n 27, infra, we do not suggest that there would be any federal constitutional infirmity in giving an instruction concerning the Governor's power to commute the death sentence. We note only that such comment is prohibited under state law. Second, the Briggs Instruction simply is not misleading. On the contrary, the instruction gives the jury accurate information in that it corrects a misleading description of a sentencing choice available to the jury. Although, as Justice Richardson noted below, 30 Cal.3d at 605, 639 P.2d at 938, most jurors may have a general awareness of the availability of commutation and parole, the statutory description of one of the sentencing choices as "life imprisonment without possibility of parole" may generate the misleading impression that the Governor could not commute this sentence to one that included the possibility of parole. The Briggs Instruction merely dispels that possible misunderstanding. Further, the defendant may offer evidence or argument regarding the commutation power, and respondent's counsel addressed the possibility of the Governor's commutation of a life sentence in his closing argument. Tr. 1161-1162. The Briggs Instruction thereby accomplishes the same result that would occur if, instead of requiring the Briggs Instruction, the State merely described the sentence statutorily as "life imprisonment with possibility of commutation." Surely, the respondent cannot argue that the Constitution prohibits the State from accurately characterizing its sentencing choices.
We note further that respondent does not, and indeed could not, contend that the California sentencing scheme violates the directive of Lockett v. Ohio, 438 U. S. 586 (1978). The California statute in question permits the defendant to present any evidence to show that a penalty less than death is appropriate in his case. Cal.Penal Code Ann. § 190.3 (West Supp.1983).
[ Footnote 20 ]
In addition, we note that there is no assurance that a Texas jury acts on a more particularized and less speculative informational base when it considers the defendant's future dangerousness than does a California jury. In Estelle v. Smith, 451 U. S. 454 (1981), the Court noted that expert psychiatric testimony about the defendant is not necessary to prove the defendant's future dangerousness under the Texas scheme.
[U]nder the Texas capital sentencing procedure, the inquiry necessary for the jury's resolution of the future dangerousness issue is in no sense confined to the province of psychiatric experts....
* * * *
While in no sense disapproving the use of psychiatric testimony bearing on the issue of future dangerousness, the holding in Jurek was guided by recognition that the inquiry mandated by Texas law does not require resort to medical experts.
Id. at 451 U. S. 472 -473. Consequently, as in the California scheme, a Texas jury's evaluation of the defendant's future dangerousness may rest on lay testimony about the defendant's character and background and the inferences to be drawn therefrom.
[ Footnote 21 ]
[S]entencing decisions rest on a far-reaching inquiry into countless facts and circumstances, and not on the type of proof of particular elements that returning a conviction does.
Zant v. Stephens, 462 U.S. at 462 U. S. 902 (REHNQUIST, J., concurring in judgment).
[ Footnote 22 ]
Consideration of the commutation power does not undermine the jury's statutory responsibility to weigh aggravating factors against mitigating factors and impose death only if the former outweigh the latter. The desirability of the defendant's release into society is simply one matter that enters into the weighing process. Moreover, the fact that the jury is given no specific guidance on how the commutation factor is to figure into its determination presents no constitutional problem. As we held in Zant v. Stephens, supra, the constitutional prohibition on arbitrary and capricious capital sentencing determinations is not violated by a capital sentencing
scheme that permits the jury to exercise unbridled discretion in determining whether the death penalty should be imposed after it has found that the defendant is a member of the class made eligible for that penalty by statute.
Id. at 462 U. S. 875.
[ Footnote 23 ]
See also ALI, Model Penal Code § 210.6 (Prop. Off. Draft 1962) (providing that, besides aggravating and mitigating factors, the sentencer "shall take into account... any other facts that it deems relevant"). The Model Penal Code further states that the court at the sentencing stage
shall inform the jury of the nature of the sentence of imprisonment that may be imposed, including its implication with respect to possible release upon parole, if the jury verdict is against sentence of death.
Our approval in Gregg v. Georgia of the wide-ranging evidence informing the penalty determination in Georgia is equally appropriate here:
We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a [presentence] hearing, and to approve open and far-ranging argument.... So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision.
428 U.S. at 428 U. S. 203 -204.
[ Footnote 24 ]
Under Art. V, § 8, of the California Constitution and its implementing statutory sections, Cal.Penal Code Ann. § 4800 et seq. (West 1982), the Governor possesses broad authority to reprieve, pardon, or commute sentences, including a death sentence.
Although the state statute containing the Briggs Instruction itself requires instruction only on the Governor's power to commute a sentence of life without possibility of parole, Cal.Penal Code Ann. § 190.3 (West Supp.1983), the trial judge in this case preceded this specific instruction with the additional statement that the Governor "is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime." Tr. 1189-1190 (emphasis added). This statement is ambiguous, and might be construed as advising the jury of the Governor's power to commute a death sentence, as well as a life sentence. However, at oral argument both the State and respondent argued that the ambiguity in the quoted sentence should not be interpreted as advising the jury of the possible commutation of a death sentence. Tr. of Oral Arg. 10, 18. More significantly, the State Supreme Court did not interpret the instruction as providing full disclosure of the extent of the Governor's power of commutation. In fact, it affirmatively concluded that the "jury is not informed that a sentence of death may be... commuted or modified." 30 Cal.3d at 597, 639 P.2d at 933 (emphasis in original). We defer to the State Supreme Court's finding on this point. See, e.g., Wolfe v. North Carolina, 364 U. S. 177, 364 U. S. 196 (1960); Lloyd A. Fry Roofing Co. v. Wood, 344 U. S. 157, 344 U. S. 160 (1952).
[ Footnote 25 ]
We observe incidentally that respondent at no time requested that the trial judge also charge the jury regarding the Governor's power to commute a death sentence.
[ Footnote 26 ]
Based on its supervisory powers, the Supreme Court of California held in Morse that a capital sentencing jury should not be instructed on either the trial judge's or the Governor's possible reduction of a death penalty. The court concluded that, by suggesting that some other authority would review the propriety of the jury's decision to impose death, the instruction tended to reduce the jury's sense of responsibility in fixing the penalty. 60 Cal.2d at 652, 388 P.2d at 46.
[ Footnote 27 ]
Given our conclusion in 463 U. S. supra, that the State may constitutionally permit consideration of the Governor's power to commute a sentence of life imprisonment without possibility of parole, we do not suggest, of course, that the Federal Constitution prohibits an instruction regarding the Governor's power to commute a death sentence.
[ Footnote 28 ]
The trial judge instructed the jury to
consider all of the evidence and all of the applicable instructions on the law which have been received during any part of the trial of this case
and to consider "any other circumstances which extenuate the gravity of the crime even though it is not a legal excuse for the crime." Tr. 1188-1189.
[ Footnote 29 ]
JUSTICE MARSHALL's dissent claims that the Briggs Instruction encourages the jury to impose the death penalty on the basis of an erroneous assumption that a defendant sentenced to death will not be released. Post at 463 U. S. 1016. We emphasize that the instruction is informational and satisfies the Jurek requirement that
[w]hat is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.
428 U.S. at 428 U. S. 276. In addition, JUSTICE MARSHALL wrongly assumes that the Briggs Instruction will be the determining factor in the jury's choice of the appropriate punishment. As we have emphasized supra at 463 U. S. 1008, the Briggs Instruction "does not advise or encourage the jury to reach its verdict in reliance upon this information." 30 Cal.3d at 603, 639 P.2d at 937 (Richardson, J., dissenting). In addition, as stated above, the trial judge's instructions in this case did not emphasize the role of this factor in the jury's decision.
[ Footnote 30 ]
See, e.g., Ga.Code Ann. § 17-8-76 (1982) (prohibiting argument as to possibility of pardon, parole, or clemency).
Many state courts have held it improper for the jury to consider or to be informed -through argument or instruction -of the possibility of commutation, pardon, or parole. The basis of decision in these cases is not always clear - i.e., it often does not appear whether the state court's decision is based on federal constitutional principles. In many instances, however, the state court's decision appears to rest on an interpretation of the State's capital sentencing system and the division of responsibility between the sentencer and other authorities effected by that scheme. See, e.g., People v. Walker, 91 Ill.2d 502, 515, 440 N.E.2d 83, 89-90 (1982) (" Our statute requires that the court or jury, as the case may be, consider aggravating and mitigating factors, which are relevant to the imposition of the death penalty.... Whether or not the defendant may, at some future time, be paroled is not a proper aggravating factor to consider in determining whether the death penalty should be imposed") (emphasis added); State v. Lindsey, 404 So.2d 466, 486 (La.1981) ("Nowhere in the entire sentencing scheme does the [state code of criminal procedure] provide that the sentencing jury may consider the offender's future potential for release should a life sentence be imposed.... [G]iving a jury carte blanche permission to decide the potential factual consequences of a life sentence allows it to weigh the alternative not in terms of the clear meaning provided for it by the legislature, but in terms of a particular number of years versus the death penalty, thereby undermining the jury's responsibility to accept the law as given by the legislature through the court") (emphasis added); Poole v. State, 295 Md. 167, 197, 453 A.2d 1218, 1233 (1983) ("[T]his type of argument is likely to allow the jury to disregard its duty to determine aggravating and mitigating factors, and to then balance one against the other as required by [the state statute.]... Any consideration of the possibility of parole as such simply is irrelevant...") (emphasis added); State v. Atkinson, 253 S.C. 531, 535, 172 S.E.2d 111, 112 (1970) (" The Legislature committed to the jury the responsibility to determine in the first instance whether punishment should be life or death. It charged another agency with the responsibility of deciding how a life sentence shall be executed'") (quoting State v. White, 27 N.J. 158, 177-178, 142 A.2d 65, 76 (1958)). See also Sukle v. People, 107 Colo. 269, 273, 111 P.2d 233, 235 (1941) (consideration of parole outside proper scope of jury's duty as fixed by statute); State v. Jones, 296 N.C. 495, 502-503, 251 S.E.2d 425, 429 (1979).
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