A jury found respondent guilty of forcible rape and first-degree
murder at his California state court trial. At the penalty phase,
the trial court instructed the jury to consider and weigh the
aggravating and mitigating circumstances, but cautioned that the
jury "must not be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion or public feeling." On automatic
appeal, the California Supreme Court reversed respondent's death
sentence, holding that the quoted instruction violated federal
constitutional law by denying respondent the right to have
"sympathy factors" raised by the evidence considered by the jury
when determining the appropriate penalty.
Held: The instruction in question does not violate the
Eighth and Fourteenth Amendments when given during the penalty
phase of a capital murder trial. Pp.
479 U. S.
541-543.
(a) The instruction does not violate either of the Eighth
Amendment's prerequisites to a valid death sentence that sentencers
not be given unbridled discretion and that defendants be allowed to
introduce any relevant mitigating evidence. P.
479 U. S.
541.
(b) The California Supreme Court improperly focused solely on
the word "sympathy" in the instruction. A reasonable juror would be
unlikely to single out the word "sympathy" from the other nouns
accompanying it, and would most likely interpret the admonition to
avoid basing a decision on "mere sympathy" as a directive to ignore
only the sort of sympathy that was not rooted in the aggravating
and mitigating evidence introduced during the penalty phase. Pp.
479 U. S.
541-543.
(c) By limiting the jury's sentencing considerations to record
evidence, the instruction serves the useful purpose of cautioning
the jury against reliance on extraneous emotional factors, and
thereby fosters the Eighth Amendment's need for reliability in
death sentence determinations and ensures the availability of
meaningful judicial review. P.
479 U. S.
543.
40 Cal. 3d
512,
709 P.2d 440,
reversed and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined. O'CONNOR, J.,
filed a concurring opinion,
post, p.
479 U. S. 544.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, and in Parts II, III, IV, and V of which STEVENS,
Page 479 U. S. 539
J., joined,
post, p.
479 U. S. 547.
BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
479 U. S.
561.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented for review in this case is whether an
instruction informing jurors that they "must not be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion
or public feeling" during the penalty phase of a capital murder
trial violates the Eighth and Fourteenth Amendments to the United
States Constitution. We hold that it does not.
Respondent Albert Brown was found guilty by a jury of forcible
rape and first-degree murder in the death of 15-year-old Susan J.
At the penalty phase, the State presented evidence that respondent
had raped another young girl some years prior to his attack on
Susan J. Respondent presented the testimony of several family
members, who recounted respondent's peaceful nature and expressed
disbelief that respondent was capable of such a brutal crime.
Respondent also presented the testimony of a psychiatrist, who
stated that Brown killed his victim because of his shame and fear
over sexual dysfunction. Brown himself testified, stating that he
was ashamed of his prior criminal conduct and asking for mercy from
the jury.
Page 479 U. S. 540
California Penal Code Ann. ยง 190.3 (West Supp. 1987) provides
that capital defendants may introduce at the penalty phase any
evidence
"as to any matter relevant to . . . mitigation . . . including,
but not limited to, the nature and circumstances of the present
offense, . . . and the defendant's character, background, history,
mental condition and physical condition.
*"
The trial court instructed the jury to consider the aggravating
and mitigating circumstances and to weigh them in determining the
appropriate penalty. App. 23-24. But the court cautioned the jury
that it "must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling."
Id. at 20. Respondent was sentenced to death.
On automatic appeal, the Supreme Court of California reversed
the sentence of death.
40 Cal. 3d
512,
709 P.2d 440
(1985). Over two dissents on this point, the majority opinion found
that the instruction at issue here violates the Federal
Constitution:
""federal constitutional law forbids an instruction which denies
a capital defendant the right to have the jury consider any
sympathy factor' raised by the evidence when determining the
appropriate penalty. . . .""
Id. at 537, 709 P.2d at 453, quoting
People v.
Lanphear, 36 Cal. 3d
163, 165,
680 P.2d 1081,
1082 (1984). Relying on
Eddings v. Oklahoma, 455 U.
S. 104 (1982),
Lockett v. Ohio, 438 U.
S. 586 (1978), and
Woodson v. North Carolina,
428 U. S. 280
(1976), the court ruled that the instruction
"is calculated to divert the jury from its constitutional duty
to consider 'any [sympathetic] aspect of the defendant's character
or record,' whether or not related to the offense for which he is
on trial, in deciding the appropriate penalty."
40 Cal. 3d at 537, 709 P.2d at 453. We granted certiorari to
resolve whether such an instruction violates the United States
Constitution. 476 U.S. 1157 (1986).
Page 479 U. S. 541
The Eighth Amendment jurisprudence of this Court establishes two
separate prerequisites to a valid death sentence. First, sentencers
may not be given unbridled discretion in determining the fates of
those charged with capital offenses. The Constitution instead
requires that death penalty statutes be structured so as to prevent
the penalty from being administered in an arbitrary and
unpredictable fashion.
Gregg v. Georgia, 428 U.
S. 153 (1976);
Furman v. Georgia, 408 U.
S. 238 (1972). Second, even though the sentencer's
discretion must be restricted, the capital defendant generally must
be allowed to introduce any relevant mitigating evidence regarding
his "
character or record and any of the circumstances of the
offense.'" Eddings, supra, at 455 U. S. 110,
quoting Lockett, supra, at 438 U. S. 604.
Consideration of such evidence is a "constitutionally indispensable
part of the process of inflicting the penalty of death."
Woodson v. North Carolina, supra, at 428 U. S. 304
(opinion of Stewart, POWELL, and STEVENS, JJ.). The instruction
given by the trial court in this case violates neither of these
constitutional principles.
We think that the California Supreme Court improperly focused
solely on the word "sympathy" to determine that the instruction
interferes with the jury's consideration of mitigating
evidence.
"The question, however, is not what the State Supreme Court
declares the meaning of the charge to be, but rather what a
reasonable juror could have understood the charge as meaning."
Francis v. Franklin, 471 U. S. 307,
471 U. S.
315-316 (1985);
see Sandstrom v. Montana,
442 U. S. 510,
442 U. S.
516-517 (1979). To determine how a reasonable juror
could interpret an instruction, we "must focus initially on the
specific language challenged."
Francis v. Franklin, 471
U.S. at
471 U. S. 315.
If the specific instruction fails constitutional muster, we then
review the instructions as a whole to see if the entire charge
delivered a correct interpretation of the law.
Ibid. In
this case, we need not reach the second step of analysis, because
we hold that a reasonable juror would not interpret
Page 479 U. S. 542
the challenged instruction in a manner that would render it
unconstitutional.
The jury was told not to be swayed by "mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion or public
feeling." Respondent does not contend, and the Supreme Court of
California did not hold, that conjecture, passion, prejudice,
public opinion, or public feeling should properly play any role in
the jury's sentencing determination, even if such factors might
weigh in the defendant's favor. Rather, respondent reads the
instruction as if it solely cautioned the jury not to be swayed by
"sympathy." Even if we were to agree that a rational juror could
parse the instruction in such a hypertechnical manner, we would
disagree with both respondent's interpretation of the instruction
and his conclusion that the instruction is unconstitutional.
By concentrating on the noun "sympathy," respondent ignores the
crucial fact that the jury was instructed to avoid basing its
decision on
mere sympathy. Even a juror who insisted on
focusing on this one phrase in the instruction would likely
interpret the phrase as an admonition to ignore emotional responses
that are not rooted in the aggravating and mitigating evidence
introduced during the penalty phase. While strained in the
abstract, respondent's interpretation is simply untenable when
viewed in light of the surrounding circumstances. This instruction
was given at the end of the penalty phase, only after respondent
had produced 13 witnesses in his favor. Yet respondent's
interpretation would have these two words transform three days of
favorable testimony into a virtual charade. We think a reasonable
juror would reject that interpretation, and instead understand the
instruction not to rely on "mere sympathy" as a directive to ignore
only the sort of sympathy that would be totally divorced from the
evidence adduced during the penalty phase.
We also think it highly unlikely that any reasonable juror would
almost perversely single out the word "sympathy" from the other
nouns which accompany it in the instruction:
Page 479 U. S. 543
conjecture, passion, prejudice, public opinion, and public
feeling. Reading the instruction as a whole, as we must, it is no
more than a catalog of the kind of factors that could improperly
influence a juror's decision to vote for or against the death
penalty. The doctrine of
noscitur a sociis is based on
common sense, and a rational juror could hardly hear this
instruction without concluding that it was meant to confine the
jury's deliberations to considerations arising from the evidence
presented, both aggravating and mitigating.
An instruction prohibiting juries from basing their sentencing
decisions on factors not presented at the trial, and irrelevant to
the issues at the trial, does not violate the United States
Constitution. It serves the useful purpose of confining the jury's
imposition of the death sentence by cautioning it against reliance
on extraneous emotional factors, which, we think, would be far more
likely to turn the jury against a capital defendant than for him.
And to the extent that the instruction helps to limit the jury's
consideration to matters introduced in evidence before it, it
fosters the Eighth Amendment's "need for reliability in the
determination that death is the appropriate punishment in a
specific case."
Woodson, 428 U.S. at
428 U. S. 305.
Indeed, by limiting the jury's sentencing considerations to record
evidence, the State also ensures the availability of meaningful
judicial review, another safeguard that improves the reliability of
the sentencing process.
See Roberts v. Louisiana,
428 U. S. 325,
428 U. S. 335,
and n. 11 (1976) (opinion of Stewart, POWELL and STEVENS, JJ.).
We hold that the instruction challenged in this case does not
violate the provisions of the Eighth and Fourteenth Amendments to
the United States Constitution. The judgment of the Supreme Court
of California is therefore reversed, and the cause is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
Page 479 U. S. 544
* We have noted our approval of this statutory scheme.
California v. Ramos, 463 U. S. 992,
463 U. S.
1006, n. 19 (1983).
See also Pulley v. Harris,
465 U. S. 37,
466 U. S. 63
(1984).
JUSTICE O'CONNOR, concurring.
This case squarely presents the tension that has long existed
between the two central principles of our Eighth Amendment
jurisprudence. In
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 189
(1976), JUSTICES Stewart, POWELL, and STEVENS concluded that,
"where discretion is afforded a sentencing body on a matter so
grave as the determination of whether a human life should be taken
or spared, that discretion must be suitably directed and limited so
as to minimize the risk of wholly arbitrary and capricious
action."
In capital sentencing, therefore, discretion must be
"
controlled by clear and objective standards so as to produce
nondiscriminatory application.'" Id. at 428 U. S. 198
(quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d
612, 615 (1974)). See also Proffitt v. Florida,
428 U. S. 242,
428 U. S. 253
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (State
must provide "specific and detailed guidance" to the sentencing
body). On the other hand, this Court has also held that a
sentencing body must be able to consider any relevant mitigating
evidence regarding the defendant's character or background, and the
circumstances of the particular offense. Eddings v.
Oklahoma, 455 U. S. 104
(1982); Lockett v. Ohio, 438 U. S. 586
(1978) (plurality opinion).
The issue in this case is whether an instruction designed to
satisfy the principle that capital sentencing decisions must not be
made on mere whim, but instead on clear and objective standards,
violates the principle that the sentencing body is to consider any
relevant mitigating evidence. JUSTICE BRENNAN in his dissenting
opinion, contends that the instruction at issue "precludes
precisely the response that a defendant's evidence of character and
background is designed to elicit."
Post at
479 U. S. 548.
The Court, on the other hand, holds that the instruction merely
admonishes the jury
"to ignore emotional responses that are not rooted in the
aggravating
Page 479 U. S. 545
and mitigating evidence introduced during the penalty
phase."
Ante at
479 U. S.
542.
In my view, evidence about the defendant's background and
character is relevant because of the belief, long held by this
society, that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and
mental problems, may be less culpable than defendants who have no
such excuse. This emphasis on culpability in sentencing decisions
has long been reflected in Anglo-American jurisprudence. As this
Court observed in
Eddings, the common law has struggled
with the problem of developing a capital punishment system that is
"sensible to the uniqueness of the individual." 455 U.S. at
455 U. S. 110.
Lockett and
Eddings reflect the belief that
punishment should be directly related to the personal culpability
of the criminal defendant. Thus, the sentence imposed at the
penalty stage should reflect a reasoned moral response to the
defendant's background, character, and crime, rather than mere
sympathy or emotion.
Because the individualized assessment of the appropriateness of
the death penalty is a moral inquiry into the culpability of the
defendant, and not an emotional response to the mitigating
evidence, I agree with the Court that an instruction informing the
jury that they "must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or public feeling"
does not, by itself, violate the Eighth and Fourteenth Amendments
to the United States Constitution. At the same time, the jury
instructions -- taken as a whole -- must clearly inform the jury
that they are to consider any relevant mitigating evidence about a
defendant's background and character, or about the circumstances of
the crime. As JUSTICE BRENNAN'S dissent illustrates, however, one
difficulty with attempts to remove emotion from capital sentencing
through instructions such as those at issue in this case is that
juries may be misled into believing
Page 479 U. S. 546
that mitigating evidence about a defendant's background or
character also must be ignored.
See post at
479 U. S.
555.
On remand, the California Supreme Court should determine whether
the jury instructions, taken as a whole and considered in
combination with the prosecutor's closing argument, adequately
informed the jury of its responsibility to consider all of the
mitigating evidence introduced by the respondent. The jury was
given instruction 8.84.1, 1 California Jury Instructions, Criminal
(4th ed. 1979) (CALJIC), which lists the specific aggravating and
mitigating factors the sentencer is to consider in determining
punishment. Only one subsection of that instruction even arguably
applies to the nonstatutory mitigating factors:
"Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime."
CALJIC 8.84.1(k). The respondent contends that the jury might
have understood this instruction as mandating consideration only of
mitigating evidence about the circumstances of the crime, and not
evidence about the defendant's background and character. Moreover,
in his closing remarks, the prosecutor in this case may have
suggested to the jury that it must ignore the mitigating evidence
about the respondent's background and character. In combination
with the instructions, the comments of the prosecutor may create a
"legitimate basis for finding ambiguity concerning the factors
actually considered by the" jury.
Eddings v. Oklahoma,
supra, at
455 U. S. 119
(O'CONNOR, J., concurring).
Because it is open to the California Supreme Court to determine
on remand whether the jury was adequately informed of its
obligation to consider all of the mitigating evidence introduced by
the respondent, I concur in the judgment and opinion of the
Court.
Page 479 U. S. 547
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom
JUSTICE STEVENS joins as to Parts II-V, dissenting.
I
Adhering to my view that the death penalty is in all
circumstances cruel and unusual punishment forbidden by the Eighth
and Fourteenth Amendments, I dissent from the Court's opinion to
the extent that it would result in the imposition of the death
penalty upon respondent.
Gregg v. Georgia, 428 U.
S. 153,
428 U. S. 227
(1976). However, even if I believed that the death penalty could be
imposed constitutionally under certain circumstances, I would
affirm the California Supreme Court, for that court has reasonably
interpreted the jury instruction at issue to divert the jury from
its constitutional duty to consider all mitigating evidence
introduced by a defendant at the sentencing phase of trial.
II
A sentencing instruction is invalid if it precludes the
sentencer from
"considering, as a mitigating factor, any aspect of a
defendant's character or record . . . that the defendant proffers
as a basis for a sentence less than death."
Lockett v. Ohio, 438 U. S. 586,
438 U. S. 604
(1978) (plurality opinion) (emphasis omitted). Furthermore, an
instruction cannot stand if it leaves the jury unclear as to
whether it may consider such evidence.
"[W]e may not speculate as to whether the [sentencer] actually
considered all of the mitigating factors and found them
insufficient to offset the aggravating circumstances,"
since our case law "require[s] us to remove any legitimate basis
for finding ambiguity concerning the factors actually considered. .
. ."
Eddings v. Oklahoma, 455 U.
S. 104,
455 U. S. 119
(1982) (O'CONNOR, J., concurring).
The issue in this case is whether a jury might reasonably
interpret the California jury instruction in either of these two
ways. The facial language of the instruction, the manner in which
it has been construed in trials in California, and experience
Page 479 U. S. 548
with other provisions of the state sentencing scheme all
buttress California's interpretation of its own jury instruction.
In light of this evidence, there is simply no warrant for this
Court to override the state court's assessment of how a jury in
California might reasonably interpret the instruction before
us.
III
A
The instruction at issue informed the jury: "You must not be
swayed by mere sentiment, conjecture, sympathy, passion, prejudice,
public opinion or public feeling." App. 20. [
Footnote 1] In forbidding the sentencer to take
sympathy into account, this language, on its face, precludes
precisely the response that a defendant's evidence of character and
background is designed to elicit, thus effectively negating the
intended effect of the Court's requirement that all mitigating
evidence be considered. As the plurality said in
Woodson v.
North Carolina, 428 U. S. 280,
428 U. S. 304
(1976), such evidence is intended to induce consideration of
"compassionate or mitigating factors stemming from the diverse
frailties of humankind." In
Eddings, supra, for example,
we struck down petitioner's death sentence because of the failure
of the trial judge to consider Eddings' troubled childhood as a
mitigating factor. The fact that his parents divorced when he was
five, that his mother was an alcoholic and possibly a prostitute,
and that his father used excessive physical punishment were all
deemed relevant to the sentencing decision, 455 U.S. at
455 U. S. 107,
because of their potential for evoking sympathy for petitioner.
The State acknowledges that sympathy for the defendant is
appropriate, but contends that the antisympathy instruction simply
prevents the jury from relying on "untethered sympathy" unrelated
to the circumstances of the offense or the defendant. Brief for
Petitioner 49, 58. Yet, as the California
Page 479 U. S. 549
court has noted on other occasions,
see People v.
Easley, 34 Cal.3d. 858, 875-876,
671 P.2d 813,
824 (1983), the instruction gives no indication whatsoever that the
jury is to distinguish between "tethered" and "untethered"
sympathy. The Court nonetheless accepts the notion that a jury
would interpret the instruction to require such a distinction. None
of the reasons it offers for accepting this implausible
construction are persuasive.
First, the Court finds it significant that the jury was
instructed not simply to avoid sympathy, but to avoid "mere"
sympathy. This word, contends the Court, would likely lead a juror
to interpret the instruction
"as an admonition to ignore emotional responses that are not
rooted in the aggravating and mitigating evidence introduced during
the penalty phase."
Ante at
479 U. S. 542.
The instruction, however, counsels the jury not to be swayed by
"mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling." A juror could logically conclude that
"mere" modified only "sentiment," so it is by no means clear that
the instruction would likely be construed to preclude reliance on
"mere sympathy." In order for "mere" to be regarded as modifying
"sympathy," as the Court contends, "mere" must be read to modify
all the other terms in the instruction as well: conjecture,
passion, prejudice, public opinion, or public feeling. By the
Court's own logic, since "mere" serves to distinguish "tethered"
from "untethered" sympathy, it also serves to distinguish
"tethered" from "untethered" versions of all the other emotions
listed. Yet surely no one could maintain, for instance, that some
"tethered" form of prejudice relating to the case at hand could
ever be appropriate in capital sentencing deliberations. Indeed,
the Court describes the nouns accompanying "sympathy" in the
instructions as
"no more than a catalog of the kind of factors that could
improperly influence a juror's decision to vote for or against the
death penalty."
Ante at
479 U. S. 543.
The single word
Page 479 U. S. 550
"mere" therefore cannot shoulder the burden of validating this
antisympathy instruction.
Second, the Court argues that jurors must assume that the
defendant would not introduce evidence of character and background
if the jury could not consider such information.
Ante at
479 U. S. 542.
It is equally likely, however, that jurors instructed not to rely
on sympathy would conclude that the defendant had simply gone too
far in his presentation, and that, as in other trial contexts, the
jury must look to the judge for guidance as to that portion of the
evidence that appropriately could be considered. Instructions are
commonly given at the end of trial which clarify the significance
of evidence and of events at trial, since the jury is not at
liberty to assume that everything that occurs at trial is
automatically or equally relevant to its deliberations.
Finally, the Court says that, since "sympathy" is accompanied in
the instruction by a list of obviously impermissible factors, a
juror would naturally assume that the instruction
"was meant to confine the jury's deliberations to considerations
arising from the evidence presented, both aggravating and
mitigating."
Ante at
479 U. S. 542.
How a juror would be expected to make this leap is unclear. The
inclusion of "sympathy" in an expansive list of impermissible
emotions would logically lead a juror to conclude that
any
response rooted in emotion was inappropriate. An average juror is
likely to possess the common understanding that law and emotion are
antithetical, and an instruction that a wide range of emotional
factors are irrelevant to his or her deliberation reinforces that
notion. It is simply unrealistic to assume that an instruction
ruling out several emotions in unqualified language would be
construed as a directive that certain forms of emotion are
permissible, while others are not. While we generally assume that
jurors are rational, they are not telepathic.
The vast majority of jurors thus can be expected to interpret
"sympathy" to mean "sympathy," not to engage in the tortuous
reasoning process necessary to construe it as
Page 479 U. S. 551
"untethered sympathy." We would be far more likely in fact to
call into question the fidelity to duty of a juror who did the
latter. The assertion that the instruction in question serves the
purpose of channeling the jury's sympathy in a legitimate direction
is therefore completely unfounded. [
Footnote 2]
Even if the majority's interpretation of the instruction were
considered as plausible as that of the state court, this would be
insufficient to save the instruction. The very plausibility of the
lower court's construction means that there is a significant
prospect that a juror would interpret the instruction so as to
restrict or obfuscate the duty to consider mitigating evidence. As
we held in
Sandstrom v. Montana, 442 U.
S. 510 (1979), the fact that a reasonable juror could
have construed an instruction to make it unconstitutional is
adequate to invalidate that instruction.
Id. at
442 U. S. 526.
The fact that jurors
could have interpreted the
instruction so as to make it lawful is irrelevant, for "we cannot
be certain that this is what they
did do."
Ibid.
(emphasis in original). Even if the state court's interpretation is
not ineluctable, it is undeniably reasonable -- and that is enough
to invalidate the instruction.
B
Our assessment of the state court's interpretation of the
instruction need not rest simply on what seems in the abstract the
most plausible response to the instruction's plain language. That
court's construction is bolstered by experience
Page 479 U. S. 552
with how the instruction actually has been interpreted in the
state trial system. This experience dates back at least to 1970,
when the State Supreme Court invalidated an instruction virtually
identical to the one at issue in this case.
People v.
Bandhauer, 1 Cal. 3d 609,
618, 463 P.2d 408, 416 (1970). That instruction informed the
jury:
"The law forbids you to be governed by mere sentiment,
conjecture, sympathy, passion, prejudice, public opinion or public
feeling."
Ibid. The court ruled that such guidance was
inconsistent with state case law holding that the jury at a penalty
trial could not be instructed not to consider sympathy for the
defendant,
see, e.g., People v. Polk, 63 Cal. 2d
443, 406 P.2d 641 (1965). [
Footnote 3] In
Bandhauer, the court further found
that the antisympathy directive was not saved by a companion
instruction that told the jury: "[Y]ou are entirely free to act
according to your own judgment, conscience and absolute
discretion," for that instruction merely created an inconsistency
that the jury might well resolve "by concluding that the
restriction on sympathy served as an exception to [its] otherwise
unlimited discretion." 1 Cal. 3d at 618-619, 463 P.2d at 416.
It was against this backdrop that the state court reviewed the
virtually identical instruction in this case. The court had the
benefit of experience not only with the earlier instruction
invalidated in
Bandhauer but with the more recent
instruction as well. In its 1983 decision in
Easley,
reviewing the later instruction, the court had noted that the
drafters of the antisympathy instruction had cautioned that
"
[t]his instruction 1.00 should not be used in the penalty
phase of a capital case,'" and that instructions pertaining to the
consideration
Page 479 U. S.
553
of aggravating and mitigating factors were more appropriate
at that stage of trial. 34 Cal. 3d at 876, and n. 5, 671 P.2d at
824, and n. 6 (emphasis omitted) (quoting use note to CALJIC
1.00).
Furthermore, state trial records indicate the frequency with
which the antisympathy instruction has been interpreted to preclude
consideration of a defendant's background and character. In this
case, for instance, the prosecutor in his closing argument noted
that numerous relatives had testified at the penalty phase on
behalf of Brown, and that they
told us what a good boy he was at the time in his youth when
they knew him. And he brought them gifts, and that he cared after
his siblings.
App. 90. Nonetheless, said the prosecutor:
"
They did not testify, ladies and gentlemen, regarding any
of the factors which relate to your decision in this case.
Their testimony here, ladies and gentlemen, I would suggest, was a
blatant attempt by the defense to inject personal feelings in the
case, to make the defendant appear human, to make you feel for the
defendant, and although that is admirable in the context of an
advocate trying to do his job,
you ladies and gentlemen must
steel yourselves against those kinds of feelings in reaching a
decision in this case."
"
As the Judge will instruct you, you must not be swayed by
sympathy."
Id. at 90-91 (emphasis added).
The prosecutor in this case thus interpreted the antisympathy
instruction to require that the jury ignore the defendant's
evidence on the mitigating factors of his character and upbringing.
A similar construction has been placed on the instruction in
several other cases. In
People v.
Robertson, 33 Cal. 3d 21,
655 P.2d 279
(1982), for instance, the prosecutor informed the jury that the
fact that the defendant "didn't get the breaks in life" was
irrelevant, because
Page 479 U. S. 554
"[t]hat's a sympathy factor, a sympathy factor that does not
focus on the real issue, the crime and person Andrew Robertson was
at the time [the crime] was committed."
Id. at 56 and 57, n. 22, 655 P.2d at 300, and n. 22. He
then noted that, at the penalty phase, defendant had put on
evidence that
"went to the person of Andrew Robertson, giving Andrew
Robertson's history, where he was born, how old he was, what he did
as a young man, the fact that he went into the service. That is not
a factor. That is irrelevant to your decision in this case."
Id. at 57, n. 22, 655 P.2d at 300, n. 22. The
prosecutor also dismissed the defendant's evidence of his service
in Vietnam, declaring: "This is simply a sympathy ploy. It is going
outside the evidence and asking you to have sympathy, compassion."
Ibid.
Still other cases, pending before the State Supreme Court at the
time of argument in this Court, illustrate the gloss that
consistently has been placed on the antisympathy instruction. In
People v. Gates, Cr. 22263, the prosecutor informed the
jury:
"'It's not a time to talk for mercy or forgiveness for Oscar
Gates. It's too late for that. . . . The evidence that you received
in the case, that what you promised the judge you'd base your
decision on, because the time now is not for philosophy or
religion, mercy, forgiveness, sorry for the family, feelings of
guilt on your own part.'"
App. to Brief for Respondent 2a (quoting Tr. 1286-1287). In
People v. Walker, Cr. 21707, the prosecutor stated:
"'I also mentioned, and I guess I should mention it now -- I
wasn't going to -- the fact that there had been things here which
could elicit sympathy. Things which had nothing to do with the
case. Mr. Walker belongs to a large family, and those members have
been present here for the jury's observations during the case. But
again, obviously that has nothing to do with this case.'"
App. to Brief for Respondent (quoting Tr. 3298). In
People
v. Boyde, Cr. 22584, the jury was informed that its assessment
of the aggravating and mitigating factors
"'is not a
Page 479 U. S. 555
question, I believe, that should be guided by emotion, sympathy,
pity, anger, hate, or anything like that, because it is not
rational if you make a decision on that kind of basis.'"
App. to Brief for Respondent 3a (quoting Tr. 4767). Furthermore,
said the prosecutor:
"'[S]ympathy is an interesting thing, because, even though you
try not to consider it, this decision you are going to make has
emotional overtones to it. It would be very hard to completely
filter out all our emotions, make the decision on a rational basis.
Although the instruction says you are to try to do that.'"
App. to Brief for Respondent 3a (quoting Tr. 4817).
Experience with the antisympathy instruction therefore reveals
that it is often construed as precluding consideration of precisely
those factors of character and background this Court has decreed
must be considered by the sentencer.
See Eddings,
455 U.S. at
455 U. S.
113-114 ("Just as the State may not by statute preclude
the sentencer from considering any mitigating factor, neither may
the sentencer refuse to consider . . . any relevant mitigating
evidence"). Even if the interpretation placed upon the instruction
by prosecutors is regarded as the product of excessive zeal, rather
than dispassionate construction, the state court had ample reason
to conclude that an instruction that consistently lends itself to
such plausible construction is likely to leave the jury with the
impression that they may not consider certain mitigating evidence,
or at least with a sense of confusion on this point. Experience
with such instructions over the past 17 years thus provides
persuasive support for the state court's construction and
invalidation of its own jury instruction.
IV
The State argues that whatever defect the antisympathy
instruction might possess is cured by CALJIC instruction 8.84.1.
That instruction lists the specific aggravating and mitigating
factors the sentencer is to consider in determining
Page 479 U. S. 556
punishment. [
Footnote 4] The
State urges that subsection (k) of this instruction directs the
sentencer to consider all of the defendant's mitigating evidence.
That subsection provides that the jury may take into account "[a]ny
other circumstance which extenuates the gravity of the crime even
though it is not a legal excuse for the crime." After defendant's
trial in this case, however, the state court in
Easley
rejected the assertion that the instruction adequately informed the
jury as to the scope of mitigating evidence, and directed that, in
order to "avoid potential misunderstanding in the future," trial
courts should add to the language of subsection (k) the instruction
that the jury may consider "any other aspect of [the] defendant's
character or record . . . that the defendant
Page 479 U. S. 557
proffers as a basis for a sentence less than death." 34 Cal. 3d
at 878, n. 10, 671 P.2d at 826, n. 10. This assessment of
subsection (k) as it existed at the time of defendant's trial
reflects the fact that the language itself directs attention only
to the circumstances of the crime itself, not to broader
considerations relating to background or character. This language
is consistent with the focus of all other factors described in
CALJIC 8.84.1: the nature of the crime or the condition of the
defendant at the time it was committed.
Furthermore, experience with the operation of subsection (k) in
practice indicates that the instruction was commonly regarded as
narrow in scope. In this case, for instance, the prosecutor went
down the list of mitigating factors, explicitly mentioning the
"other circumstances" of subsection (k), and on each informed the
jury that there was no mitigation. App. 94. In
Easley,
"the prosecutor told the jury that sympathy was not one of the
mitigating factors which the law authorized it to consider." 34
Cal. 3d at 879, n. 11, 671 P.2d at 826, n. 11. Other cases
involving the instruction to consider "any other circumstance which
extenuates the gravity of the crime," pending before the State
Supreme Court at the time of argument in this Court, also
illustrate the fact that the subsection in this form lends itself
to such an interpretation. In
People v. Payton, Cr. 22511,
the prosecutor told the jury that factor (k) relates to
"'some factor at the time of the offense that somehow operates
to reduce the gravity for what the defendant did. It doesn't refer
to anything after the fact or later.'"
App. to Brief for Respondent 4a (quoting Tr. 2125). Evidence of
the defendant's "
new Christianity and that he helped the module
deputies in the jail while he was in custody'" was irrelevant, said
the prosecutor, since factor (k) referred only to "`a fact in
operation at the time of the offense.'" App. to Brief for
Respondent 4a (quoting Tr. 2125). Thus, concluded the prosecutor,
such evidence was "`just some jailhouse evidence to win your
sympathy, and that's all.'" Ibid.
Page 479 U. S. 558
Similarly, in
People v. Hamilton, Cr. 22311, the
prosecutor alluded to factor (k), and maintained that the defendant
had presented no evidence that properly could be considered. The
defendant, observed the prosecutor, had introduced evidence
"'from people who knew the defendant well twelve years ago. None
of these people knew the defendant or were with the defendant at or
about the time these crimes were occurring.'"
App. to Brief for Respondent 6a (quoting 19B Tr. 13-14). In
People v. Bigelow, Cr. 22018, the following colloquy
occurred regarding the defendant's motion to modify the death
verdict:
"'COURT: Now we have a catchall K, which is any other
circumstances [
sic] which extenuates the gravity of the
crime, even though it is not a legal excuse for the crime. Do you
have anything you want to tell me under that factor, Mr.
Bigelow?"
"'DEFENDANT: Extenuates the gravity of the crime, well, that's
-- would my sisters and brothers, would their testimony fall into
that, my childhood, and not being raised with proper parents, and
-- would that fall into extenuation of the gravity?"
"'COURT: No, I don't think that would. I don't see how your
childhood, because you've evidently had a not too happy childhood,
but that doesn't give you the right to come to America and take an
innocent man and kill him. Does it?'"
App. to Brief for Respondent 6a-7a (quoting May 8, 1981, Tr.
28). Finally, in
People v. Walker, Cr. 21707, the
prosecutor told the jury with regard to subsection (k) that it is
intended to address only those factors that make "
this crime
less serious than it looks when you look at the other factors in
the case,'" such as
"'the person who[m] he killed was someone who meant harm to his
family, someone who had threatened him, someone who had made life
miserable.'"
App. to Brief for Respondent 7a (quoting Tr. 3279-3280).
Page 479 U. S. 559
The state court thus had more than adequate justification, based
on both the plain language of subsection (k) and practical
experience with its interpretation by participants in the criminal
justice system, to assume that a jury might reasonably interpret
that subsection narrowly, and that it was unrealistic to assume
that juries would construe it to permit consideration of all of a
defendant's mitigating evidence.
Even if the Court ignores this wealth of support for the State's
interpretation of subsection (k), and finds that the instruction as
it existed at the time of Brown's trial directed the jury to
consider all of Brown's mitigating evidence, that is insufficient
to save the antisympathy instruction. Such a reading of subsection
(k) would simply mean that the jury was confronted with
inconsistent instructions likely to create the type of confusion
the state court viewed as probable in
Bandhauer. As we
said in
Francis v. Franklin, 471 U.
S. 307, 322 (1985):
"Nothing in [the] specific sentences or in the charge as a whole
makes clear to the jury that one of these contradictory
instructions carries more weight than the other. Language that
merely contradicts and does not explain a constitutionally infirm
instruction will not suffice to absolve the infirmity."
Cf. Sandstrom v. Montana, 442 U.S. at
442 U. S. 526
(if possibility of misunderstanding exists, "we have no way of
knowing that [the defendant] was not convicted on the basis of the
unconstitutional instruction").
Finally, the State argues that, even if subdivision (k) is
construed as excluding mitigating evidence not related to the
circumstances of the crime, the jurors nonetheless understood that
the enumeration of factors in instruction 8.84.1 was not
exhaustive. This contention is belied by the fact that the jury was
instructed that it
"shall consider, take into account and be guided by the
applicable factors of aggravating and mitigating circumstances
upon which you have been instructed."
App. 23 (emphasis added). The plain language of this instruction
thus rebuts the State's contention, since
Page 479 U. S. 560
the factors upon which the jury was instructed described only
specific types of mitigating evidence. Furthermore, the State
Supreme Court has interpreted the instruction quoted immediately
above in light of the other portions of the 1978 state death
penalty scheme, and has concluded that that scheme "necessarily
implie[s] that matters not within the statutory list are not
entitled to any weight in the penalty determination."
People v.
Boyd, 38 Cal. 3d
762, 773,
700 P.2d 782,
790 (1985) (footnote omitted). [
Footnote 5] There is therefore no basis for speculation
that the jury felt unconstrained by the factors listed in
instruction 8.84.1.
V
The California Supreme Court in this case has provided an
eminently reasonable interpretation of the State's antisympathy
instruction. The language of the instruction on its face prohibits
a jury from relying on sympathy in determining whether to sentence
a defendant to death. The defendant literally staked his life in
this case on the prospect that a jury confronted with evidence of
his psychological problems and harsh family background would react
sympathetically, and any instruction that would preclude such a
response cannot stand. Furthermore, even acceptance of the State's
attenuated interpretation of other instructions does not mean that
these provisions cure the problem with the antisympathy
instruction, but leads only to the conclusion that the jury was
confronted with
contradictory instructions, a state of
affairs that we have declared intolerable.
Page 479 U. S. 561
This Court has proclaimed 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, 428 U.S. at
428 U. S. 304
(plurality opinion) (citation omitted). Because of the
qualitatively different nature of the death penalty,
"there is a corresponding difference in the need for reliability
in the determination that death is the appropriate punishment in a
specific case."
Id. at
428 U. S. 305.
Even construed in its most favorable light, the jury instruction at
issue in this case did not come close to providing the requisite
assurance that the jury in this case was fully aware of the scope
of its sentencing duties. Since Brown's mitigating evidence was
composed totally of information on his character and background
intended to elicit sympathy, it is highly likely that the
instruction eliminated his only hope of gaining mercy from the
sentencer. Given our particular concern for the reliability of the
procedures used to impose the death penalty, as well as the
considerable support for the California court's interpretation, it
is baffling that this Court strains to find a way to override the
state court's construction of its own jury instruction. I cannot
acquiesce in such a course of action, and therefore dissent.
[
Footnote 1]
The language of this instruction was drawn from the longer
instruction 1.00 of 1 California Jury Instructions, Criminal (4th
ed. 1979) (CALJIC).
[
Footnote 2]
The Court also suggests that an antisympathy instruction
actually benefits a defendant in that it prevents the sentencer
from being influenced by sympathy for the
victim.
Ante at
479 U. S. 543.
It may be that the instruction produces this result in certain
cases. But it also undoubtedly precludes sympathy for the defendant
in other instances, since the language of the instruction draws no
distinction between these two types of sympathy. The fact that a
defendant may on occasion benefit from the provision in question is
insufficient to outweigh the fact that the instruction can
reasonably be construed to negate the effect of a significant
portion of a defendant's mitigating evidence. Whatever speculative
benefit the instruction bestows on the defendant cannot be
purchased at such a price.
[
Footnote 3]
This requirement that the jury not be precluded from relying on
sympathy was confirmed after
Furman v. Georgia,
408 U. S. 238
(1972), as consistent with this Court's decisions in
Lockett v.
Ohio, 438 U. S. 586
(1978), and
Eddings v. Oklahoma, 455 U.
S. 104 (1982).
See People v. Robertson, 33
Cal.3d. 21, 57,
655 P.2d 279,
301 (1982).
[
Footnote 4]
Instruction 8.84.1 provides that the jury is to consider the
following:
"(a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any
special circumstance[s] found to be true."
" (b) The presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or
violence or the expressed or implied threat to use force or
violence."
"(c) The presence or absence of any prior felony
conviction."
"(d) Whether or not the offense was committed while the
defendant was under the influence of extreme mental or emotional
disturbance."
"(e) Whether or not the victim was a participant in the
defendant's homicidal conduct or consented to the homicidal
act."
"(f) Whether or not the offense was committed under
circumstances which the defendant reasonably believed to be a moral
justification or extenuation for his conduct."
"(g) Whether or not the defendant acted under extreme duress or
under the substantial domination of another person."
"(h) Whether or not at the time of the offense the capacity of
the defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired as a
result of mental disease or defect or the affects [
sic] of
intoxication."
"(i) The age of the defendant at the time of the crime."
"(j) Whether or not the defendant was an accomplice to the
offense and his participation in the commission of the offense was
relatively minor."
"(k) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime."
CALJIC 8.84.1.
[
Footnote 5]
As the court in
Boyd noted, the potential
constitutional infirmity resulting from the fact that none of the
factors on its face "appeared broad enough to encompass every
aspect of the defendant's character and background he might advance
for consideration," 38 Cal. 3d at 775, 700 P.2d at 791, was avoided
by the 1983 construction of factor (k) as an open-ended provision
permitting the jury to consider any mitigating evidence.
See
People v. Easley, 34 Cal. 3d
858, 878, and n. 10,
671 P.2d 813,
826, and n. 10 (1983).
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins,
dissenting.
I write separately to emphasize a point to which others have
alluded,
see ante at
479 U. S. 545
(O'CONNOR, J., concurring);
ante at
479 U. S. 548
and this page (BRENNAN, J., dissenting), but which, in my view, has
not been brought into full focus.
The defense's goal in the penalty phase of a capital trial is,
of course, to receive a life sentence.
See Balske, New
Strategies for the Defense of Capital Cases, 13 Akron L.Rev. 331,
357 (1979). While the sentencer's decision to accord life to a
defendant at times might be a rational or moral one, it also may
arise from the defendant's appeal to the sentencer's
Page 479 U. S. 562
sympathy or mercy, human qualities that are undeniably emotional
in nature.
See Tr. of Oral Arg. 38, 46, 48.
In a capital sentencing proceeding, the sentencer's discretion
must be guided to avoid arbitrary or irrational decisions.
See
Gregg v. Georgia, 428 U. S. 153,
428 U. S. 195
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.). When a jury
serves as the sentencing authority, such guidance is provided, in
part, through jury instructions. This Court, however, has
recognized and even safeguarded the sentencer's power to exercise
its mercy to spare the defendant's life.
See Caldwell v.
Mississippi, 472 U. S. 320,
472 U. S. 331
(1985), quoting
Caldwell v. State, 443 So. 2d
806,
817 (Miss.
1983) (dissenting opinion) ("'The [mercy] plea is made directly to
the jury, as only they may impose the death sentence"');
Eddings v. Oklahoma, 455 U. S. 104,
455 U. S. 110
(1982) ("[T]he rule in
Lockett [v. Ohio, 438 U.
S. 586 (1978)] is the product of a considerable history
reflecting the law's effort to develop a system of capital
punishment at once consistent and principled but also humane and
sensible to the uniqueness of the individual");
Gregg v.
Georgia, 428 U.S. at
428 U. S. 182
(opinion of Stewart, POWELL, and STEVENS, JJ.) ("Rather, the
reluctance of juries in many cases to impose the sentence may well
reflect the humane feeling that this most irrevocable of sanctions
should be reserved for a small number of extreme cases").
The sentencer's ability to respond with mercy towards a
defendant has always struck me as a particularly valuable aspect of
the capital sentencing procedure. Long ago, when, in dissent, I
expressed my fear of legislation that would make the death penalty
mandatory, and thus remove all discretion from the sentencer, I
observed that such legislation would be "regressive . . . , for it
[would] eliminat[e] the element of mercy in the imposition of
punishment."
Furman v. Georgia, 408 U.
S. 238,
408 U. S. 413
(1972). In my view, we adhere so strongly to our belief that
sentencers should have the opportunity to spare a capital
defendant's life on account of compassion for the individual
because, recognizing that the
Page 479 U. S. 563
capital sentencing decision must be made in the context of
"contemporary values,"
Gregg v. Georgia, 428 U.S. at
428 U. S. 181
(opinion of STEWART, POWELL, and STEVENS, JJ.), we see in the
sentencer's expression of mercy a distinctive feature of our
society that we deeply value.
In the real world, as in this case, it perhaps is unlikely that
one word in an instruction would cause a jury totally to disregard
mitigating factors that the defendant has presented through
specific testimony. When, however, a jury member is moved to be
merciful to the defendant, an instruction telling the juror that he
or she cannot be "swayed" by sympathy well may arrest or restrain
this humane response, with truly fatal consequences for the
defendant. This possibility I cannot accept, in light of the
special role of mercy in capital sentencing and the stark finality
of the death sentence.
See Woodson v. North Carolina,
428 U. S. 280,
428 U. S. 305
(1976) (plurality opinion).
I respectfully dissent.