After his trial on multiple murder charges, Ronald Simmons
waived his right to direct appeal of his conviction and death
sentence. The trial court conducted a hearing and determined that
Simmons was competent to waive further proceedings. Pursuant to its
rule that Arkansas law does not require a mandatory appeal in all
death penalty cases, but that a defendant can forgo his direct
appeal only if he has been judicially determined to have the
capacity to understand the choice between life and death and to
knowingly and intelligently waive any and all rights to appeal his
sentence, the State Supreme Court reviewed the competency
determination and affirmed the trial court's decision that Simmons
had knowingly and intelligently waived the right to appeal. The
court then denied the motion of petitioner Whitmore -- a death row
inmate convicted in a robbery-murder case, who had exhausted his
direct appellate review, been denied state post-conviction relief,
and not yet sought federal habeas corpus relief -- to intervene in
the proceeding both individually and as Simmons' "next friend,"
concluding that Whitmore lacked standing. This Court granted
Whitmore's petition for certiorari on the questions whether a third
party has standing to challenge the validity of a death sentence
imposed on a capital defendant who has elected to forgo his right
of appeal, and whether the Eighth and Fourteenth Amendments
prohibit the State from carrying out a death sentence without first
conducting a mandatory appellate review of the conviction and
sentence.
Held: Whitmore lacks standing to proceed in this Court.
Pp.
495 U. S.
154-166.
(a) Before a federal court can consider the merits of a legal
claim, the person seeking to invoke the court's jurisdiction must
establish the requisite standing to sue. To do so, he must prove
the existence of an Art. III case or controversy by clearly
demonstrating that he has suffered an "injury in fact," which is
concrete in both a qualitative and temporal sense. He must show
that the injury "fairly can be traced to the challenged action,"
and "is likely to be redressed by a favorable decision."
Simon
v. Eastern Kentucky Welfare Rights Org., 426 U. S.
26,
426 U. S. 38,
426 U. S. 41.
Pp.
495 U. S.
154-156.
(b) Whitmore does not have standing in his individual capacity
based on a legal right to a system of mandatory appellate review
assertedly granted to him personally and to Simmons by the Eighth
Amendment.
Page 495 U. S. 150
His principal claim of injury in fact -- that if he obtains
federal habeas relief but is convicted and resentenced to death in
a new trial, then, in light of Arkansas' comparative review in
death penalty cases, he has a direct and substantial interest in
having the data base against which his crime is compared to be
complete and to not be arbitrarily skewed by the omission of
Simmons' heinous crimes -- is too speculative to invoke Art. III
jurisdiction. Even assuming that Whitmore would eventually secure
habeas relief and be convicted and resentenced to death, there is
no factual basis on which to conclude that the sentence imposed on
a mass murderer would be relevant to a future comparative review of
his robbery-murder sentence. His theory is at least as speculative
as other allegations of possible future injury that have been found
insufficient to establish Art. III injury-in-fact.
See, e.g.,
O'Shea v. Littleton, 414 U. S. 488.
United States v. SCRAP, 412 U. S. 669,
distinguished. Whitmore's further contention that, as an Arkansas
citizen, he is entitled to the Eighth Amendment's public interest
protections and has a right to invoke this Court's jurisdiction to
insure that the State does not carry out an execution without
mandatory appellate review raises only the generalized interest of
all citizens in constitutional governance, and is an inadequate
basis on which to grant him standing. Nor does the uniqueness of
the death penalty and society's interest in its proper imposition
justify creating an exception to traditional standing doctrine,
since the requirement of an Art. III case or controversy is not
merely a traditional "rule of practice," but rather is imposed
directly by the Constitution. Pp.
495 U. S.
156-161.
(c) Whitmore's alternative argument that he has standing as
Simmons' "next friend" is also rejected. The scope of any federal
"next friend" standing doctrine, assuming that one exists absent
congressional authorization, is no broader than the "next friend"
standing permitted under the federal habeas corpus statute. Thus,
one necessary condition is a showing by the proposed "next friend"
that the real party in interest is unable to litigate his own cause
due to mental incapacity, lack of access to court, or other similar
disability. That prerequisite is not satisfied where, as here, an
evidentiary hearing shows that the defendant has given a knowing,
intelligent, and voluntary waiver of his right to proceed, and his
access to court is otherwise unimpeded. Pp.
495 U. S.
161-166.
298 Ark. 193 and 255,
766 S.W.2d
422 and 423, certiorari dismissed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ.,
joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN,
J., joined,
post, p.
495 U. S.
166.
Page 495 U. S. 151
Chief Justice REHNQUIST delivered the opinion of the Court.
This case presents the question whether a third party has
standing to challenge the validity of a death sentence imposed on a
capital defendant who has elected to forgo his right of appeal to
the State Supreme Court. Petitioner Jonas Whitmore contends that
the Eighth and Fourteenth Amendments prevent the State of Arkansas
from carrying out the death sentence imposed on Ronald Gene Simmons
without first conducting a mandatory appellate review of Simmons'
conviction and sentence. We hold that petitioner lacks standing,
and therefore dismiss the writ of certiorari.
I
On December 28, 1987, Ronald Gene Simmons shot and killed two
people and wounded three others in the course of a rampage through
the town of Russellville, Arkansas. After police apprehended
Simmons, they searched his home in nearby Dover, Arkansas, and
discovered the bodies of 14 members of Simmons' family, all of whom
had been murdered. The State filed two sets of criminal charges
against
Page 495 U. S. 152
Simmons, one based on the two Russellville murders and the other
covering the deaths of his family members.
Simmons was first tried for the Russellville crimes, and a jury
convicted him of capital murder and sentenced him to death. After
being sentenced, Simmons made this statement under oath:
"I, Ronald Gene Simmons, Sr., want it to be known that it is my
wish and my desire that absolutely no action by anybody be taken to
appeal or in any way change this sentence. It is further
respectfully requested that this sentence be carried out
expeditiously."
See Franz v. State, 296 Ark. 181, 183,
754 S.W.2d
839, 840 (1988). The trial court conducted a hearing concerning
Simmons' competence to waive further proceedings, and concluded
that his decision was knowing and intelligent.
As Simmons' execution date approached, Louis J. Franz, a
Catholic priest who counsels inmates at the Arkansas Department of
Corrections, petitioned the Supreme Court of Arkansas for
permission to proceed as Simmons' "next friend" and to prosecute an
appeal on his behalf. The court held that Franz did not have
standing as "next friend," because he had not alleged facts showing
that he had ever met Simmons, much less that he had a close
relationship with the defendant. It also rejected both his argument
for standing under the Arkansas Constitution as an aggrieved
taxpayer and his assertion that he should have standing as a
concerned citizen to prevent an important legal issue from going
unresolved at the appellate level.
In dicta, the court went on to state that Arkansas law does not
require a mandatory appeal in all death penalty cases. It did note,
however, that a defendant sentenced to death in Arkansas will be
able to forgo his direct appeal
"only if he has been judicially determined to have the capacity
to understand the choice between life and death and to knowingly
and intelligently waive any and all rights to appeal his
sentence."
Id. at 189, 754 S.W.2d at 843. After reviewing the
record of the trial court's competency hearing, the Supreme
Court
Page 495 U. S. 153
held that Simmons had made a knowing and intelligent waiver of
his right to appeal. Franz and another Arkansas death row inmate,
Darrel Wayne Hill, then applied in Federal District Court for a
writ of habeas corpus to prevent Simmons' execution, but the
petition was denied on the ground that Franz and Hill did not have
standing.
Franz v. Lockhart, 700
F. Supp. 1005 (ED Ark.1988), appeal pending, No. 89-1485EA
(CA8).
The State subsequently tried Simmons for the murder of his 14
family members, and on February 10, 1989, a jury convicted him of
capital murder and imposed a sentence of death by lethal injection.
Simmons again notified the trial court of his desire to waive his
right to direct appeal, and, after a hearing, the court found
Simmons competent to do so. The Supreme Court of Arkansas, pursuant
to the rule established in
Franz, reviewed the competency
determination and affirmed the trial court's decision that Simmons
had knowingly and intelligently waived his right to appeal.
Simmons v. State, 298 Ark. 193,
766
S.W.2d 422 (1989). The court commended the trial court and
Simmons' counsel for doing
"an exceptional job in examining and exploring [Simmons']
capacity to understand the choice between life and death and his
ability to know and to intelligently waive any and all right he
might have in an appeal of his sentence."
Id. at 194, 766 S.W.2d at 423. The court also noted
that Simmons' counsel "thoroughly discussed seven possible points
that could be argued for reversal on appeal" and that Simmons
acknowledged those points but "rejected all encouragement and
suggestions to appeal."
Ibid.
Three days later, petitioner Jonas Whitmore, another death row
inmate in Arkansas, sought permission from the Supreme Court of
Arkansas to intervene in Simmons' proceeding both individually and
"as next friend of Ronald Gene Simmons." The court concluded that
Whitmore had failed to show he had standing to intervene, and it
denied the motion.
Simmons v. State, 298 Ark. 255, 766
S.W.2d 423 (1989).
Page 495 U. S. 154
Whitmore then asked this Court to stay Simmons' execution, which
was scheduled for March 16, 1989. We granted a stay pending the
filing and disposition of a petition for certiorari, 489 U.S. 1073
(1989), and later granted Whitmore's petition for certiorari. 492
U.S. 917 (1989).
II
A
This is not the first time we have encountered a third party
seeking to prevent the execution of a capital defendant who has
decided to forgo further judicial proceedings. In
Gilmore v.
Utah, 429 U.S. 1012 (1976), we considered an application for a
stay of the execution of Gary Mark Gilmore, filed by his mother
Bessie Gilmore after the defendant declined to request relief. A
majority of the Court concluded that Gilmore had made a knowing and
intelligent waiver of any federal rights available to him and,
accordingly, allowed the execution to go forward. Four Members of
the Court, however, felt that the standing and other constitutional
issues raised by the application were substantial and would have
given the matter plenary consideration. Since
Gilmore, we
have been presented with other applications from third parties for
stays of execution,
see Lenhard v. Wolff, 443 U.
S. 1306,
stay of execution denied, 444 U.
S. 807 (1979);
Evans v. Bennett, 440 U.
S. 1301,
stay of execution denied, id. at 987
(1979), but until the present case, we have not requested full
briefing and argument and issued an opinion of the Court on this
recurring issue.
Petitioner Whitmore asks this Court to hold that, despite
Simmons' failure to appeal, the Eighth and Fourteenth Amendments
require the State of Arkansas to conduct an appellate review of his
conviction and sentence before it can proceed to execute him. It is
well established, however, that before a federal court can consider
the merits of a legal claim, the person seeking to invoke the
jurisdiction of the court must establish the requisite standing to
sue. Article III, of course,
Page 495 U. S. 155
gives the federal courts jurisdiction over only "cases and
controversies," and the doctrine of standing serves to identify
those disputes which are appropriately resolved through the
judicial process.
See Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464,
454 U. S.
471-476 (1982). Our threshold inquiry into standing "in
no way depends on the merits of the [petitioner's] contention that
particular conduct is illegal,"
Warth v. Seldin,
422 U. S. 490,
422 U. S. 500
(1975), and we thus put aside for now Whitmore's Eighth Amendment
challenge and consider whether he has established the existence of
a "case or controversy."
Although we have acknowledged before that
"the concept of
Art. III standing' has not been defined with
complete consistency in all of the various cases decided by this
Court which have discussed it,"
Valley Forge, supra, 454 U.S. at
454 U. S. 475,
certain basic principles have been distilled from our decisions. To
establish an Art. III case or controversy, a litigant first must
clearly demonstrate that he has suffered an "injury in fact." That
injury, we have emphasized repeatedly, must be concrete in both a
qualitative and temporal sense. The complainant must allege an
injury to himself that is "distinct and palpable,"
Warth,
supra, 422 U.S. at
422 U. S. 501,
as opposed to merely "[a]bstract,"
O'Shea v. Littleton,
414 U. S. 488,
414 U. S. 494
(1974), and the alleged harm must be actual or imminent, not
"conjectural" or "hypothetical."
Los Angeles v. Lyons,
461 U. S. 95,
461 U. S.
101-102 (1983). Further, the litigant must satisfy the
"causation" and "redressability" prongs of the Art. III minima by
showing that the injury "fairly can be traced to the challenged
action," and "is likely to be redressed by a favorable decision."
Simon v. Eastern Kentucky Welfare Rights Org.,
426 U. S. 26,
426 U. S. 38,
426 U. S. 41
(1976);
Valley Forge, supra, 454 U.S. at 472. The litigant
must clearly and specifically set forth facts sufficient to satisfy
these Art. III standing requirements. A federal court is powerless
to create its own
Page 495 U. S. 156
jurisdiction by embellishing otherwise deficient allegations of
standing.
See Warth, supra, 422 U.S. at 508,
422 U. S. 518.
[
Footnote 1]
B
As we understand Whitmore's claim of standing in his individual
capacity, he alleges that the State has infringed rights that the
Eighth Amendment grants to him personally and to the subject of the
impending execution, Simmons. He therefore rests his claim to
relief both on his own asserted legal right to a system of
mandatory appellate review and on Simmons' similar right. Under
either theory, Whitmore must establish Art. III standing,
see
Secretary of State of Md. v. Joseph H. Munson Co.,
467 U. S. 947,
467 U. S. 956
(1984);
Singleton v. Wulff, 428 U.
S. 106,
428 U. S. 112
(1976), and we find that his allegations fall short of doing
so.
Whitmore's principal claim of injury in fact is that Arkansas
has established a system of comparative review in death penalty
cases, and that he has
"a direct and substantial interest in having the data base
against which his crime is compared to be complete, and to not be
arbitrarily skewed by the omission of any other capital case."
Brief for Petitioner 21. Although he has already been convicted
of murder and sentenced to death, has exhausted his direct
appellate review,
see Whitmore v. State, 296 Ark. 308,
756 S.W.2d
890 (1988), and has been denied state postconviction relief,
Whitmore v. State, 299 Ark. 55,
771
S.W.2d 266 (1989), petitioner suggests that he might in the
future obtain federal habeas corpus relief that would entitle him
to a new trial. If, in that new trial, Whitmore is again convicted
and sentenced to death, he would once more seek review of the
sentence by the Supreme Court of Arkansas; that court would compare
Whitmore's case with other capital cases to insure that the death
penalty
Page 495 U. S. 157
is not freakishly or arbitrarily applied in Arkansas. Petitioner
asserts that he would ultimately be injured by the State Supreme
Court's failure to review Simmons' death sentence, because the
heinous crimes committed by Simmons would not be included in the
data base employed for Whitmore's comparative review. The injury
would be redressed by an order from this Court that the Eighth
Amendment requires mandatory appellate review.
Petitioner's alleged injury is too speculative to invoke the
jurisdiction of an Art. III court. Whitmore's conviction and death
sentence are final, and his claim that he may eventually secure
federal habeas relief from his conviction is obviously problematic.
Nor, although the odds may well be better, can petitioner prove
that, if he were to obtain habeas relief, he would be retried,
convicted, and again sentenced to death. And even were we to follow
Whitmore this far down the path, it is nothing more than conjecture
that the addition of Simmons' crimes to a comparative review "data
base" would lead the Supreme Court of Arkansas to set aside a death
sentence for Whitmore, whose victim died after he stabbed her 10
times, cut her throat, and carved an "X" on the side of her face.
296 Ark. at 317, 756 S.W.2d at 895. In its comparative review of
Whitmore's current sentence, the Arkansas court simply noted that
defendants in similar robbery-murder capital crimes had also been
sentenced to death.
Ibid. Whitmore provides no factual
basis for us to conclude that the sentence imposed on a mass
murderer like Simmons would even be relevant to a future
comparative review of Whitmore's sentence.
Whitmore's theory of injury is at least as speculative as others
we have found insufficient to establish Art. III injury in fact. In
O'Shea v. Littleton, 414 U. S. 488
(1974), we held there was no case or controversy where residents of
an Illinois town sought injunctive relief against a magistrate and
a circuit court judge whom the plaintiffs claimed were engaged in a
pattern and practice of illegal bond-setting, sentencing, and
Page 495 U. S. 158
jury-fee practices in criminal cases. The allegation of
respondents (plaintiffs) in that case amounted to a claim
"that
if respondents proceed to violate an unchallenged
law and
if they are charged, held to answer, and tried in
any proceedings before petitioners, they will be subjected to the
discriminatory practices that petitioners are alleged to have
followed."
Id. at
414 U. S. 497.
That contention, which we think is analogous to Whitmore's, took us
"into the area of speculation and conjecture,"
ibid., and
beyond the bounds of our jurisdiction.
We have likewise thought inadequate allegations of future injury
contingent on a plaintiff having an encounter with police wherein
police would administer an allegedly illegal "chokehol[d],"
Los
Angeles v. Lyons, 461 U.S. at
461 U. S. 105,
on the prospective future candidacy of a former Congressman,
Golden v. Zwickler, 394 U. S. 103,
394 U. S. 109
(1969), and on police using deadly force against a person fleeing
from an as yet uneffected arrest.
Ashcroft v. Mattis,
431 U. S. 171,
431 U. S. 172,
n. 2 (1977). Recently, in
Diamond v. Charles, 476 U. S.
54 (1986), we rejected a physician's attempt to defend a
state law restricting abortions, because his complaint that fewer
abortions would lead to more paying patients was "
unadorned
speculation'" insufficient to invoke the federal judicial power.
Id. at 476 U. S. 66
(quoting Simon v. Eastern Kentucky Welfare Rights Org.,
426 U.S. at 426 U. S. 44).
Each of these cases demonstrates what we have said many times
before and reiterate today: Allegations of possible future injury
do not satisfy the requirements of Art. III. A threatened injury
must be "`certainly impending'" to constitute injury in fact.
Babbitt v. Farm Workers, 442 U. S. 289,
442 U. S. 298
(1979) (quoting Pennsylvania v. West Virginia,
262 U. S. 553,
262 U. S. 593
(1923)). See also Lyons, supra, 461 U.S. at 461 U. S. 102;
United States v. Richardson, 418 U.
S. 166, 418 U. S.
177-178 (1974).
Probably the most attenuated injury conferring Article III
standing was that asserted by the respondents in
United States
v. SCRAP, 412 U. S. 669
(1973). There, an environmental
Page 495 U. S. 159
group challenged the Interstate Commerce Commission's approval
of a surcharge on railroad freight rates, claiming that the adverse
environmental impact of the ICC's action on the Washington
metropolitan area would cause the group's members to suffer
"
economic, recreational and aesthetic harm.'" Id. at
412 U. S. 678.
The SCRAP group alleged that
"a general rate increase would . . . cause increased use of
nonrecyclable commodities as compared to recyclable goods, thus
resulting in the need to use more natural resources to produce such
goods, some of which resources might be taken from the Washington
area, and resulting in more refuse that might be discarded in
national parks in the Washington area."
Id. at
412 U. S. 688.
The Court held that those pleadings alleged a specific and
perceptible harm sufficient to survive a motion to dismiss for lack
of standing, but also indicated that the United States could have
been entitled to summary judgment on the standing issue if it
showed that "the allegations were sham and raised no genuine issue
of fact."
Id. at
412 U. S. 689,
and n. 15.
Even under the analysis of the standing question in
SCRAP, which surely went to the very outer limit of the
law, petitioner's asserted injury is not enough to establish
jurisdiction. In
SCRAP, the environmental group alleged
that specific and perceptible harms -- depletion of natural
resources and increased littering -- would befall its members
imminently if the ICC orders were not reversed. That bald
statement, even if incorrect, was held sufficient to withstand a
motion to dismiss, because the plaintiffs in
SCRAP may
have been able to show at trial that the string of occurrences
alleged would happen immediately. But Whitmore does not make -- and
could not responsibly make -- a similar claim of immediate harm. We
can take judicial notice of the fact that writs of habeas corpus
are granted in only some cases, and that guilty verdicts are
returned after only some trials. It is just not possible for a
litigant to prove in advance that the judicial system will lead to
any particular result in his
Page 495 U. S. 160
case. Thus, unlike the injury alleged in
SCRAP, there
is no amount of evidence that potentially could establish that
Whitmore's asserted future injury is "
real and immediate.'"
See O'Shea, supra, 414 U.S. at 414 U. S. 494.
Moreover, as noted above, even if Whitmore could demonstrate with
certainty that he would be retried, convicted, and sentenced, he
has not shown that Simmons' convictions would be pertinent to his
proportionality review in the Supreme Court of Arkansas.
Whitmore also contends that, as a citizen of Arkansas, he is
"entitled to the public interest protections of the Eighth
Amendment," and has a right to invoke this Court's jurisdiction to
insure that an execution is not carried out in Arkansas without
appellate review. This allegation raises only the "generalized
interest of all citizens in constitutional governance,"
Schlesinger v. Reservists Committee to Stop the War,
418 U. S. 208,
418 U. S. 217
(1974), and is an inadequate basis on which to grant petitioner
standing to proceed. To dispose of this claim, we need do no more
than quote our decision in
Allen v. Wright, 468 U.
S. 737,
468 U. S. 754
(1984):
"This Court has repeatedly held that an asserted right to have
the Government act in accordance with law is not sufficient,
standing alone, to confer jurisdiction on a federal court."
Accord, Valley Forge College v. Americans United, 454
U.S. at
454 U. S.
482-483 and
454 U. S.
489-490, n. 26 ("Were we to recognize standing premised
on an
injury' consisting solely of an alleged violation of a
`"personal constitutional right" to a government that does not
establish religion,' a principled consistency would dictate
recognition of respondents' standing to challenge execution of
every capital sentence on the basis of a personal right to a
government that does not impose cruel and unusual punishment")
(quoting Americans United for Separation of Church and State,
Inc. v. United States Dept. of Health, Education and Welfare,
619 F.2d 252, 265 (CA3 1980) (citation omitted)); Schlesinger,
supra, 418 U.S. at 418 U. S.
216-227; United States v. Richardson, supra,
418 U.S. at 418 U. S.
176-177.
Page 495 U. S. 161
Perhaps recognizing the weakness of his claim for standing,
petitioner argues next that the Court should create an exception to
traditional standing doctrine for this case. The uniqueness of the
death penalty and society's interest in its proper imposition, he
maintains, justify a relaxed application of standing principles.
The short answer to this suggestion is that the requirement of an
Art. III "case or controversy" is not merely a traditional "rule of
practice," but rather is imposed directly by the Constitution. It
is not for this Court to employ untethered notions of what might be
good public policy to expand our jurisdiction in an appealing case.
We have previously resisted the temptation to
"import profound differences of opinion over the meaning of the
Eighth Amendment to the United States Constitution into the domain
of administrative law,"
Heckler v. Chaney, 470 U. S. 821,
470 U. S. 838
(1985);
id. at
470 U. S.
839-840 (BRENNAN, J., concurring), and restraint is even
more important when the matter at issue is the constitutional
source of the federal judicial power itself. [
Footnote 2] We hold that Whitmore does not have
standing in his individual capacity to press an Eighth Amendment
objection to Simmons' conviction and sentence.
C
As an alternative basis for standing to maintain this action,
petitioner purports to proceed as "next friend of Ronald Gene
Simmons." Although we have never discussed the concept
Page 495 U. S. 162
of "next friend" standing at length, it has long been an
accepted basis for jurisdiction in certain circumstances. Most
frequently, "next friends" appear in court on behalf of detained
prisoners who are unable, usually because of mental incompetence or
inaccessibility, to seek relief themselves.
E.g., United States
ex rel. Toth v. Quarles, 350 U. S. 11,
350 U. S. 13, n.
3 (1955) (prisoner's sister brought habeas corpus proceeding while
he was being held in Korea). As early as the 17th century, the
English Habeas Corpus Act of 1679 authorized complaints to be filed
by "any one on . . . behalf" of detained persons,
see 31
Car. II, ch. 2, and in 1704 the House of Lords resolved
"that every Englishman, who is imprisoned by any authority
whatsoever, has an undoubted right, by his agents or friends, to
apply for and obtain a Writ of Habeas Corpus, in order to procure
his liberty by due course of law."
See Astaby v. White, 14 How.St.Tr. 695, 814 (Q.B.
1704). Some early decisions in this country interpreted ambiguous
provisions of the federal habeas corpus statute to allow "next
friend" standing in connection with petitions for writs of habeas
corpus,
see, e.g., Collins v. Traeger, 27 F.2d 842, 843
(CA9 1928);
United States ex rel. Funaro v. Watchorn, 164
F. 152, 153 (SDNY 1908), [
Footnote
3] and Congress eventually codified
Page 495 U. S. 163
the doctrine explicitly in 1948.
See 28 U.S.C. § 2242
(1982 ed.) ("Application for a writ of habeas corpus shall be in
writing signed and verified by the person for whose relief it is
intended
or by someone acting in his behalf") (emphasis
added). [
Footnote 4]
A "next friend" does not himself become a party to the habeas
corpus action in which he participates, but simply pursues the
cause on behalf of the detained person, who remains the real party
in interest.
Morgan v. Potter, 157 U.
S. 195, 198 (1895);
Nash ex rel. Hashimoto v.
MacArthur, 87 U.S.App.D.C. 268, 269-270, 184 F.2d 606, 607-608
(1950),
cert. denied, 342 U.S. 838 (1951). Most important
for present purposes, "next friend" standing is by no means granted
automatically to whomever seeks to pursue an action on behalf of
another. Decisions applying the habeas corpus statute have adhered
to at least two firmly rooted prerequisites for "next friend"
standing. First, a "next friend" must provide an adequate
explanation -- such as inaccessibility, mental incompetence, or
other disability -- why the real party in interest cannot appear on
his own behalf to prosecute the action.
Wilson v. Lane,
870 F.2d 1250, 1253 (CA7 1989),
cert. pending, No. 89-81;
Smith ex rel. Missouri Public Defender Comm'n v.
Armontrout, 812 F.2d 1050, 1053 (CA8),
cert. denied,
483 U.S. 1033 (1987);
Weber v. Garza, 570 F.2d 511,
513-514 (CA5 1978). Second, the "next friend" must be truly
dedicated to the best interests of the person on whose behalf he
seeks to litigate,
see, e.g., Morris v. United
States, 399 F.
Supp. 720, 722 (ED Va.1975), and it has been further
Page 495 U. S. 164
suggested that a "next friend" must have some significant
relationship with the real party in interest.
Davis v.
Austin, 492 F.
Supp. 273, 275-276 (ND Ga.1980) (minister and first cousin of
prisoner denied "next friend" standing). The burden is on the "next
friend" clearly to establish the propriety of his status, and
thereby justify the jurisdiction of the court.
Smith,
supra, at 1053;
Groseclose ex rel. Harries v.
Dutton, 594 F.
Supp. 949, 952 (MD Tenn.1984).
These limitations on the "next friend" doctrine are driven by
the recognition that
"[i]t was not intended that the writ of habeas corpus should be
availed of, as matter of course, by intruders or uninvited
meddlers, styling themselves next friends."
United States ex rel. Bryant v. Houston, 273 F. 915,
916 (CA2 1921);
see also Rosenberg v. United States,
346 U. S. 273,
346 U. S.
291-292 (1953) (Jackson, J., concurring with five other
Justices) (discountenancing practice of granting "next friend"
standing to one who was a stranger to the detained persons and
their case and whose intervention was unauthorized by the
prisoners' counsel). Indeed, if there were no restriction on "next
friend" standing in federal courts, the litigant asserting only a
generalized interest in constitutional governance could circumvent
the jurisdictional limits of Art. III simply by assuming the mantle
of "next friend."
Whitmore, of course, does not seek a writ of habeas corpus
on behalf of Simmons. He desires to intervene in a state court
proceeding to appeal Simmons' conviction and death sentence. Under
these circumstances, there is no federal statute authorizing the
participation of "next friends." The Supreme Court of Arkansas
recognizes, apparently as a matter of common law, the availability
of "next friend" standing in the Arkansas courts, see Franz v.
State, 296 Ark. 181, 184, 754 S.W.2d
839, 840-841 (1988), but declined to grant it to Whitmore.
Without deciding whether a "next friend" may ever invoke the
jurisdiction of a federal court absent congressional authorization,
we think the scope of any federal doctrine of "next friend"
standing is no broader than what is
Page 495 U. S. 165
permitted by the habeas corpus statute, which codified the
historical practice. And in keeping with the ancient tradition of
the doctrine, we conclude that one necessary condition for "next
friend" standing in federal court is a showing by the proposed
"next friend" that the real party in interest is unable to litigate
his own cause due to mental incapacity, lack of access to court, or
other similar disability.
That prerequisite for "next friend" standing is not satisfied
where an evidentiary hearing shows that the defendant has given a
knowing, intelligent, and voluntary waiver of his right to proceed,
and his access to court is otherwise unimpeded.
See Gilmore v.
Utah, 429 U.S. at 1017 (STEVENS, J., concurring). Although we
are not here faced with the question whether a hearing on mental
competency is required by the United States Constitution whenever a
capital defendant desires to terminate further proceedings, such a
hearing will obviously bear on whether the defendant is able to
proceed on his own behalf. The Supreme Court of Arkansas requires a
competency hearing as a matter of state law, and in this case it
affirmed the trial court's finding that Simmons had
"the capacity to understand the choice between life and death
and to knowingly and intelligently waive any and all rights to
appeal his sentence."
Simmons v. State, 298 Ark. at 194, 766 S.W.2d at 423.
At oral argument, Whitmore's counsel questioned the validity of the
waiver, but we find no reason to disturb the judgment of the
Supreme Court of Arkansas on this point.
Simmons was questioned by counsel and the trial court concerning
his choice to accept the death sentence, and his answers
demonstrate that he appreciated the consequences of that decision.
He indicated that he understood several possible grounds for
appeal, which had been explained to him by counsel, but informed
the court that he was "
not seeking any technicalities.'" Tr.
15. In a psychiatric interview, Simmons stated that he would
consider it "`a terrible miscarriage of justice for a person to
kill people and not be executed,'"
Page 495 U. S.
166
id. at 29, and there was no meaningful evidence
that he was suffering from a mental disease, disorder, or defect
that substantially affected his capacity to make an intelligent
decision. See Rees v. Peyton, 384 U.
S. 312, 384 U. S. 314
(1966). We therefore hold that Whitmore, having failed to establish
that Simmons is unable to proceed on his own behalf, does not have
standing to proceed as "next friend" of Ronald Gene
Simmons.
* * * *
At the beginning of this century, the Court confronted a
situation similar to this in which a concerned citizen sought to
bring an ordinary civil action to secure relief for a condemned
man. The Court's response on that occasion is equally apt
today:
"However friendly he may be to the doomed man and sympathetic
for his situation; however concerned he may be lest
unconstitutional laws be enforced, and however laudable such
sentiments are, the grievance they suffer and feel is not special
enough to furnish a cause of action in a case like this."
Gusman v. Marrero, 180 U. S. 81,
180 U. S. 87
(1901).
Jonas Whitmore lacks standing to proceed in this Court, and the
writ of certiorari is dismissed for want of jurisdiction.
See
Doremus v. Board of Education, 342 U.
S. 429 (1952).
It is so ordered.
[
Footnote 1]
In addition to the constitutional requirements of Art. III, the
court has developed several now familiar prudential limitations on
standing.
See Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.
S. 464,
454 U. S.
472-475 (1982). These limitations are not involved in
this case.
[
Footnote 2]
The cases relied upon by petitioner to establish that the strict
requirement of standing, in some circumstances, is only a "rule of
practice" that can be relaxed in view of countervailing policies
are inapposite, because they concern prudential barriers to
standing, not the mandates of Art. III.
See Eisenstadt v.
Baird, 405 U. S. 438,
405 U. S. 445
(1972);
Dombrowski v. Pfister, 380 U.
S. 479,
380 U. S.
486-487 (1965);
United States v. Raines,
362 U. S. 17,
362 U. S. 22
(1960). Because we conclude that petitioner has not established
Art. III standing, we need not decide whether it would be
appropriate in this type of action to relax the general prudential
rule that a litigant
"must assert his own legal rights and interests, and cannot rest
his claim to relief on the legal rights or interests of third
parties."
Warth v. Seldin, 422 U. S. 490,
422 U. S. 499
(1975).
[
Footnote 3]
One section of the former habeas corpus statute provided that
"[a]pplication for writ of habeas corpus shall be . . .
signed
by the person for whose relief it is intended." Rev.Stat. §
754; 28 U.S.C. § 454 (1940 ed.) (emphasis added). Nevertheless, the
Collins and
Watchorn courts found an implicit
authorization of "next friend" standing in § 760 of the revised
statutes, which stated that "[t]he petitioner
or the party
imprisoned or restrained may deny any of the facts set forth in the
return." Rev.Stat. § 760; 28 U.S.C. § 460 (1940 ed.) (emphasis
added). At least one court concluded that "next friend" standing
was not available under the old statute.
Ex parte Hibbs,
26 F. 421, 435 (Ore.1886). Other courts recognized the ability of
third parties to apply for a writ, but did not make clear the basis
for their decisions.
United States ex rel. Bryant v.
Houston, 273 F. 915, 916-917 (CA2 1921);
Ex parte
Dostal, 243 F. 664, 668 (ND Ohio 1917). When Congress added
the words "or by someone acting in his behalf" to § 754 in 1948,
the revisers noted that the change "follow[ed] the actual.practice
of the courts." Revisers' Notes to 28 U.S.C. § 2242 (1982 ed.).
[
Footnote 4]
Some courts have permitted "next friends" to prosecute actions
outside the habeas corpus context on behalf of infants, other
minors, and adult mental incompetents.
See, e.g., Garnett v.
Garnett, 114 Mass. 379 (1874) ("next friend" may bring action
for divorce on behalf of an insane person);
Campbell v.
Campbell, 242 Ala. 141, 5 So. 2d 401 (1941) (same);
Blumenthal v. Craig, 81 F. 320, 321-322 (CA3 1897) ("next
friend" was admitted by court to prosecute personal injury action
on behalf of the plaintiff, who was a minor);
Baltimore &
Ohio R. Co. v. Fitzpatrick, 36 Md. 619 (1872) (same).
Justice MARSHALL, with whom Justice BRENNAN joins,
dissenting.
The Court today allows a State to execute a man even though no
appellate court has reviewed the validity of his conviction or
sentence. In reaching this result, the Court does not address the
constitutional claim presented by petitioner: whether a State must
provide appellate review in a capital case despite the defendant's
desire to waive such review. Rather, it decides that petitioner
does not have standing to raise that issue before this Court. The
Court rejects petitioner's argument that he should be allowed to
proceed
Page 495 U. S. 167
as Ronald Gene Simmons' "next friend," relying on the federal
common law doctrine that a competent defendant's waiver of his
right to appeal precludes another person from appealing on his
behalf. If petitioner's constitutional claim is meritorious,
however, Simmons' execution violates the Eighth Amendment. The
Court would thus permit an unconstitutional execution on the basis
of a common law doctrine that the Court has the power to amend.
Given the extraordinary circumstances of this case, then,
consideration of whether federal common law precludes Jonas
Whitmore's standing as Simmons' next friend should be informed by a
consideration of the merits of Whitmore's claim. For the reasons
discussed herein, the Constitution requires that States provide
appellate review of capital cases notwithstanding a defendant's
desire to waive such review. To prevent Simmons' unconstitutional
execution, the Court should relax the common law restriction on
next friend standing and permit Whitmore to present the merits
question on Simmons' behalf. By refusing to address that question,
the Court needlessly abdicates its grave responsibility to ensure
that no person is wrongly executed. I dissent.
I
This Court has held that the Constitution does not require
States to provide appellate review of noncapital criminal cases.
Ross v. Moffitt, 417 U. S. 600,
417 U. S. 611
(1974) (citing
McKane v. Durston, 153 U.
S. 684,
153 U. S. 687
(1894)). It is by now axiomatic, however, that the unique,
irrevocable nature of the death penalty necessitates safeguards not
required for other punishments.
"Under the Eighth Amendment, the death penalty has been treated
differently from all other punishments. Among the most important
and consistent themes in this Court's death penalty jurisprudence
is the need for special care and deliberation in decisions that may
lead to the imposition of that sanction. The Court has
accordingly
Page 495 U. S. 168
imposed a series of unique substantive and procedural
restrictions designed to ensure that capital punishment is not
imposed without the serious and calm reflection that ought to
precede any decision of such gravity and finality."
Thompson v. Oklahoma, 487 U. S. 815,
487 U. S. 856
(1988) (O'CONNOR, J., concurring in judgment) (citation omitted).
See also Zant v. Stephens, 462 U.
S. 862,
462 U. S. 884
(1983) ("[B]ecause there is a qualitative difference between death
and any other permissible form of punishment,
there is a
corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a
specific case'") (quoting Woodson v. North Carolina,
428 U. S. 280,
428 U. S. 305
(1976) (plurality opinion)); Eddings v. Oklahoma,
455 U. S. 104,
455 U. S. 118
(1982) (O'CONNOR, J., concurring) ("[T]his Court has gone to
extraordinary measures to ensure that the prisoner sentenced to be
executed is afforded process that will guarantee, as much as is
humanly possible, that the sentence was not imposed out of whim,
passion, prejudice, or mistake").
This Court has consistently recognized the crucial role of
appellate review in ensuring that the death penalty is not imposed
arbitrarily or capriciously. In
Gregg v. Georgia,
428 U. S. 153
(1976), the Court upheld Georgia's capital sentencing scheme in
large part because the statute required appellate review of every
death sentence.
"As an important additional safeguard against arbitrariness and
caprice, the Georgia statutory scheme provides for automatic appeal
of all death sentences to the State's Supreme Court. That court is
required by statute to review each sentence of death and determine
whether it was imposed under the influence of passion or prejudice,
whether the evidence supports the jury's finding of a statutory
aggravating circumstance, and whether the sentence is
disproportionate compared to those sentences imposed in similar
cases."
Id. at
428 U. S. 198
(joint opinion of Stewart, Powell, and STEVENS, JJ.).
Page 495 U. S. 169
See also id. at
428 U. S. 211
(WHITE, J., joined by BURGER, C.J., and REHNQUIST, J., concurring
in judgment) ("An important aspect of the new Georgia legislative
scheme . . . is its provision for appellate review . . . in every
case in which the death penalty is imposed"). The provision of
automatic appellate review was also a significant factor in the
Court's decisions that same Term upholding the capital sentencing
schemes of Florida and Texas.
See Proffitt v. Florida,
428 U. S. 242,
428 U. S. 253
(1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (risk
of arbitrary or capricious infliction of death penalty "is
minimized by Florida's appellate review system, under which the
evidence of the aggravating and mitigating circumstances is
reviewed and reweighed by the Supreme Court of Florida
to
determine independently whether the imposition of the ultimate
penalty is warranted'") (citation omitted); Jurek v.
Texas, 428 U. S. 262,
428 U. S. 276
(1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) ("By
providing prompt judicial review of the jury's decision in a court
with statewide jurisdiction, Texas has provided a means to promote
the evenhanded, rational, and consistent imposition of death
sentences under law"). More recently, in Zant v. Stephens,
supra, the Court stressed that its decision to uphold the
Georgia death penalty statute
"depend[ed] in part on the existence of an important procedural
safeguard, the mandatory appellate review of each death sentence by
the Georgia Supreme Court to avoid arbitrariness and to assure
proportionality."
462 U.S. at
462 U. S. 890.
Accord, McCleskey v. Kemp, 481 U.
S. 279,
481 U. S. 303
(1987).
See also Clemons v. Mississippi, 494 U.
S. 738,
494 U. S. 749
(1990) ("[T]his Court has repeatedly emphasized that meaningful
appellate review of death sentences promotes reliability and
consistency").
The existence of mandatory appellate review was also a
significant factor in the Court's decision upholding California's
capital sentencing scheme in
Pulley v. Harris,
465 U. S. 37,
465 U. S. 53
(1984). Moreover, although the Court held that the Constitution
does not require appellate courts to engage in
Page 495 U. S. 170
proportionality review, it nevertheless acknowledged that
Gregg "suggested that some form of meaningful appellate
review is required."
Id. at
465 U. S. 45
(citing
Gregg, supra, 428 U.S. at
428 U. S. 153,
428 U. S. 198,
428 U. S.
204-206 (joint opinion of Stewart, Powell, and STEVENS,
JJ.)).
See also Pulley, supra, 465 U.S. at
465 U. S. 49
("Gregg and Proffitt were focused not on proportionality review as
such, but only on the provision of some sort of prompt and
automatic appellate review");
id. at
465 U. S. 54
(STEVENS, J., concurring in part and concurring in judgment)
(stating that this Court's precedents establish "that some form of
meaningful appellate review is constitutionally required").
Thus, much of this Court's death penalty jurisprudence rests on
the recognition that appellate review is a crucial means of
promoting reliability and consistency in capital sentencing. The
high percentage of capital cases reversed on appeal vividly
demonstrates that appellate review is an indispensable safeguard.
Since 1983, the Arkansas Supreme Court, on direct review, has
reversed in 8 out of 19 cases in which the death penalty had been
imposed.
See Robertson v. State, 298 Ark. 131, 137,
765 S.W.2d
936, 940 (1989) (Hickman, J., concurring);
Fretwell v.
State, 289 Ark. 91, 99,
708 S.W.2d
630, 634-635 (1986) (Hickman, J., concurring). Other States
also have remarkably high reversal rates in capital cases.
See,
e.g., Burt, Disorder in the Court: The Death Penalty and the
Constitution, 85 Mich.L.Rev. 1741, 1792 (1987) (Florida Supreme
Court set aside 47% of death sentences between 1972 and 1984); Dix,
Appellate Review of the Decision to Impose Death, 68 Geo.L.J. 97,
144-145, and n. 437 (1979) (Texas Court of Criminal Appeals
reversed conviction or invalidated death sentence in 33% of cases
between October 1975 and March 1979);
id. at 111, and n.
92 (Georgia Supreme Court did same in 30% of capital cases between
April 1974 and March 1979).
Cf. Barefoot v. Estelle,
463 U. S. 880,
463 U. S. 915
(1983) (MARSHALL, J., dissenting) (between 1976 and 1983,
approximately 70% of capital defendants who had been denied federal
habeas relief in district courts prevailed
Page 495 U. S. 171
in courts of appeals); Greenberg, Capital Punishment as a
System, 91 Yale L.J. 908, 918 (1982) (estimating that 60% of
convictions or sentences imposed under capital punishment statutes
enacted after
Furman v. Georgia, 408 U.
S. 238 (1972), were reversed at some point in
postconviction appeals process; in contrast, federal criminal
judgments in noncapital cases had a reversal rate of 6.5%); U.S.
Dept. of Justice, Bureau of Justice Statistics, Bulletin, Capital
Punishment 1988, p. 1 (July 1989) (116 of 296 death row inmates
sent to prison in 1988 had sentences vacated or commuted during
that year). These statistics make clear that, in the absence of
some form of appellate review, an unacceptably high percentage of
criminal defendants would be wrongfully executed -- "wrongfully"
because they were innocent of the crime, undeserving of the
severest punishment relative to similarly situated offenders, or
denied essential procedural protections by the State.
See
Greenberg,
supra, at 919-922 (listing numerous examples of
death row inmates subsequently found to be not guilty and instances
of capital convictions and sentences reversed for violations of
federal or state law).
Our cases and state courts' experience with capital cases compel
the conclusion that the Eighth and Fourteenth Amendments require
appellate review of at least death sentences to prevent unjust
executions. I believe the Constitution also mandates review of the
underlying convictions. The core concern of all our death penalty
decisions is that States take steps to ensure to the greatest
extent possible that no person is wrongfully executed. A person is
just as wrongfully executed when he is innocent of the crime or was
improperly convicted as when he was erroneously sentenced to death.
States therefore must provide review of both the convictions and
sentences in death cases.
II
Appellate review is necessary not only to safeguard a
defendant's right not to suffer cruel and unusual punishment
Page 495 U. S. 172
but also to protect society's fundamental interest in ensuring
that the coercive power of the State is not employed in a manner
that shocks the community's conscience or undermines the integrity
of our criminal justice system.
See Gilmore v. Utah, 429
U.S. 1012, 1019 (1976) (MARSHALL, J., dissenting). Because a
wrongful execution is an affront to society as a whole, a person
may not consent to being executed without appellate review.
See
id. at 1018 (WHITE, J., dissenting) ("[T]he consent of a
convicted defendant in a criminal case does not privilege a State
to impose a punishment otherwise forbidden by the Eighth
Amendment"). As the District Court stated so compellingly on review
of the habeas petition filed on Simmons' behalf by Reverend Louis
Franz and Darrel Wayne Hill:
"What is at stake here is our collective right as a civilized
people not to have cruel and unusual punishment inflicted in our
name. It is because of the crying need to vindicate that right,
that basic value, that Simmons should be held unable 'to waive
resolution in state courts' of the correctness of his death
sentence."
Franz v. Lockhart, 700 F.
Supp. 1005, 1024 (ED Ark.1988) (quoting
Gilmore v. Utah,
supra, 429 U.S. at 1018 (WHITE, J., dissenting)) (citation
omitted),
appeal pending, No. 89-1485EA (CA8).
See
also, e.g., Commonwealth v. McKenna, 476 Pa. 428, 441,
383 A.2d
174, 181 (1978) ("The doctrine of waiver . . . was not . . .
designed to block giving effect to a strong public interest, which
itself is a jurisprudential concern[, or to] allo[w] a criminal
defendant to choose his own sentence. . . . The waiver rule cannot
be exalted to a position so lofty as to require this Court to blind
itself to the real issue -- the propriety of allowing the state to
conduct an illegal execution of a citizen") (footnote omitted);
People v. Stanworth, 71 Cal. 2d
820, 834, 80 Cal. Rptr. 49, 59, 457 P.2d 889, 899 (1969) ("[W]e
are not dealing with a right or privilege conferred by law upon the
litigant for his sole personal benefit. We are concerned with a
principle of fundamental public policy. The law cannot suffer the
state's interest and concern in the observance and enforcement
of
Page 495 U. S. 173
this policy to be thwarted through the guise of waiver of a
personal right by an individual") (internal quotation marks
omitted; citation omitted).
A defendant's voluntary submission to a barbaric punishment does
not ameliorate the harm that imposing such a punishment causes to
our basic societal values and to the integrity of our system of
justice. Certainly a defendant's consent to being drawn and
quartered or burned at the stake would not license the State to
exact such punishments. Nor could the State knowingly execute an
innocent man merely because he refused to present a defense at
trial and waived his right to appeal. Similarly, the State may not
conduct an execution rendered unconstitutional by the lack of an
appeal merely because the defendant agrees to that punishment.
This case thus does not involve a capital defendant's so-called
"right to die." When a capital defendant seeks to circumvent
procedures necessary to ensure the propriety of his conviction and
sentence, he does not ask the State to permit him to take his own
life. Rather, he invites the State to violate two of the most basic
norms of a civilized society -- that the State's penal authority be
invoked only where necessary to serve the ends of justice, not the
ends of a particular individual, and that punishment be imposed
only where the State has adequate assurance that the punishment is
justified. The Constitution forbids the State to accept that
invitation.
Society's overwhelming interest in preventing wrongful
executions is evidenced by the fact that almost all of the 37
States with the death penalty apparently have prescribed mandatory,
nonwaivable appellate review of at least the sentence in capital
cases. U.S. Dept. of Justice, Bureau of Justice Statistics,
Bulletin, Capital Punishment 1988, p. 5 (July 1989); Carter,
Maintaining Systemic Integrity in Capital Cases: The Use of
Court-Appointed Counsel to Present Mitigating Evidence When the
Defendant Advocates Death, 55
Page 495 U. S. 174
Tenn.L.R. 95, 113-114 (1987). [
Footnote 2/1] The Arkansas Supreme Court is the only
state high court that has held that a competent capital defendant's
waiver of his appeal precludes appellate review entirely.
Franz
v. State, 296 Ark. 181, 196-197,
754 S.W.2d
839, 847 (1988) (Glaze, J., concurring and dissenting).
Furthermore, since the reinstitution of capital
Page 495 U. S. 175
punishment in 1976, only one person, Gary Gilmore, has been
executed without any appellate review of his case.
See Gilmore
v. Utah, 429 U.S. 1012 (1976). Following Utah's execution of
Gilmore, that State amended its law to provide for mandatory,
nonwaivable appellate review. Utah Code Ann. § 77-35-26(10)
(Supp.1989);
see also Utah Code Ann. § 76-3-206(2) (1978).
The extreme rarity of unreviewed executions in itself suggests the
unconstitutionality of such killings.
Cf. Enmund v.
Florida, 458 U. S. 782,
458 U. S.
788-796 (1982) (finding unconstitutional Florida's death
penalty for felony murder in part because only 8 of 36
jurisdictions authorized death for such a crime);
Coker v.
Georgia, 433 U. S. 584,
433 U. S.
593-597 (1977) (striking down Georgia's provision for
death penalty for rape of adult woman in part because Georgia was
only State with such a provision).
This Court has recognized in other contexts that societal
interests may justify limiting a competent person's ability to
waive a constitutional protection. In
Singer v. United
States, 380 U. S. 24
(1965), for example, the Court upheld the constitutionality of
Federal Rule of Criminal Procedure 23(a), which conditions a
defendant's waiver of his right to a jury trial on the approval of
the court and the prosecution. The Court reasoned that
"[t]he Constitution recognizes an adversary system as the proper
method of determining guilt, and the Government, as a litigant, has
a legitimate interest in seeing that cases in which it believes a
conviction is warranted are tried before the tribunal which the
Constitution regards as most likely to produce a fair result."
380 U.S. at
380 U. S. 36.
Society's interest, expressed in the Eighth Amendment, of ensuring
that punishments are neither cruel nor unusual similarly justifies
restricting a defendant's ability to acquiesce in the infliction of
wrongful punishment. Although death may, to some death row inmates,
seem preferable to life in prison, society has the right, and
indeed the obligation,
Page 495 U. S. 176
to see that procedural safeguards are observed before the State
takes a human life. [
Footnote
2/2]
III
Given that the Constitution requires mandatory, nonwaivable
appellate review, the question remains whether Whitmore may seek
relief in this Court on Simmons' behalf. This Court should take
whatever measures are necessary, and within its power, to prevent
Simmons' illegal execution. The common law doctrine of next friend
standing provides a mechanism for doing so without exceeding the
Article III limitations on our jurisdiction. [
Footnote 2/3] The Court's refusal to use that mechanism
suggests that the Court's desire to eliminate delays in executions
exceeds its solicitude for the Eighth Amendment.
As the Court acknowledges, a next friend pursues an action on
behalf of the real party in interest.
Ante at
495 U. S. 163.
Simmons obviously satisfies the Article III and prudential standing
requirements. The Court therefore does not dispute that Whitmore,
standing in for Simmons, would also meet these requirements. The
Court refuses to allow Whitmore to act as Simmons' next friend,
however, because he has not shown that Simmons "is unable to
litigate his own cause due to mental incapacity, lack of access to
court, or
Page 495 U. S. 177
other similar disability."
Ante at
495 U. S. 165.
The Court suggests, without holding, that a party asserting next
friend status must also prove that he is "truly dedicated to the
best interests of the person on whose behalf he seeks to litigate,"
ante at
495 U. S. 163,
and perhaps, too, that he has "some significant relationship with
the real party in interest,"
ante at
495 U. S. 164.
[
Footnote 2/4]
Assuming for the sake of argument that Simmons was competent to
forgo petitioning this Court for review [
Footnote 2/5] and that Whitmore is only minimally
interested in Simmons' welfare, I would nevertheless permit
Whitmore to proceed as Simmons' next friend. The requirements for
next friend standing are creations of common law, not of the
Constitution.
Ante at
495 U. S.
164-165. Thus, no constitutional considerations impede
the Court's deciding this case on the merits. [
Footnote 2/6] The Court certainly
Page 495 U. S. 178
has the authority to expand or contract a common law doctrine
where necessary to serve an important judicial or societal
interest. Examples of the Court's exercise of that authority
pervade our case law.
See, e.g., Harlow v. Fitzgerald,
457 U. S. 800,
457 U. S.
815-819 (1982) (abandoning subjective element of
qualified immunity defense to avoid excessive disruption of
government and to permit the resolution of insubstantial claims on
summary judgment);
Anderson v. Creighton, 483 U.
S. 635,
483 U. S. 645
(1987) (stating that
Harlow "completely reformulated
qualified immunity along principles not at all embodied in the
common law, replacing the inquiry into subjective malice so
frequently required at common law with an objective inquiry into
the legal reasonableness of the official action");
Parklane
Hosiery Co. v. Shore, 439 U. S. 322,
439 U. S.
326-333 (1979) (discarding common law doctrine of
mutuality of parties and authorizing offensive use of collateral
estoppel to protect litigants from burden of relitigating issues
and to promote judicial economy).
See also Livingston v.
Jefferson, 15 F. Cas. 660, 663 (No. 8,411) (CC Va.1811)
(Marshall, C.J., Circuit Judge) (common law principle is "a
principle of unwritten law, which is really human reason applied by
courts, not capriciously, but in a regular train of decisions, to
human affairs, according to the circumstances of the nation, the
necessity of the times, and the general state of things, [and is]
susceptible of modification"). In this case, the magnitude of the
societal interests at stake justifies relaxing the next friend
requirements to permit Whitmore to challenge Simmons'
execution.
Relaxation of those requirements is especially warranted here,
because judicial consideration of the claim that the Constitution
requires appellate review of every capital case would
Page 495 U. S. 179
otherwise be virtually impossible. If a capital defendant
desires appellate review, he will undoubtedly obtain that review in
state court,
see 495
U.S. 149fn2/1|>n. 1,
supra, and, perhaps, in
federal court on a petition for habeas corpus. If he waives his
right to appeal and is found incompetent, a next friend will be
allowed to pursue the appeal, again obviating the need to decide
whether the Eighth Amendment requires mandatory, nonwaivable
review. Although the fact that a constitutional issue will never be
resolved may not justify carving out an exception to Article III's
standing requirements, surely that fact, when considered with
society's commitment to avoiding wrongful executions, provides
ample cause for enlarging the scope of a federal common law
doctrine.
The only purpose the Court invokes for rigidly applying the
restrictions on next friend standing is preventing "
intruders
or uninvited meddlers'" from pursuing habeas corpus relief "`as a
matter of course.'" Ante at 495 U. S. 164
(quoting United States ex rel. Bryant v. Houston, 273 F.
915, 916 (CA2 1921)). This purpose, however, does not justify
refusing to allow Whitmore to proceed as Simmons' next friend in
this Court. [Footnote 2/7] First,
the Court need not hold that all federal
Page 495 U. S. 180
courts must relax restrictions on next friend standing; the
common law rules could be altered only to the extent this Court
deems necessary. If this Court were to hold that Whitmore has
standing before it, and then, on the merits, that the Constitution
requires some form of nonwaivable appellate review in state court,
at least one level of review would be assured for each capital
case. Such a decision would obviate the need for relaxing the
restrictions in federal district courts and courts of appeals.
[
Footnote 2/8]
Page 495 U. S. 181
More fundamentally, however, the interest in preventing a suit
by an "uninvited meddler" pales in comparison to society's interest
in preventing an illegal execution. When, as here, allowing the
"meddler" to press the condemned man's interests is the only means
by which the Court can prevent an unconstitutional execution, the
Court should sacrifice the common law restrictions rather than the
defendant's life.
IV
The Court today refuses to address a meritorious constitutional
claim by rigidly applying a technical common law rule completely
within its power to amend or suspend. It thereby permits States to
violate the Constitution by executing willing defendants without
requiring minimal assurance that their convictions were correct or
their sentences justified. This decision thus continues the Court's
unseemly effort to hasten executions at the cost of permitting
constitutional violations to go unrectified.
See, e.g., Butler
v. McKellar, 494 U. S. 407
(1990);
Teague v. Lane, 489 U. S. 288
(1989). I dissent.
[
Footnote 2/1]
Thirteen States, by statute, rule, or case law, explicitly
provide that review of at least the capital sentence will occur
with or without the defendant's election or participation. Ala.Code
§ 12-22-150 (1986); Cal.Penal Code Ann. § 1239(b) (West Supp.1990);
People v. Stanworth, 71 Cal. 2d
820, 832-834, 80 Cal. Rptr. 49 58-59, 457 P.2d 889, 898-899
(1969); Del.Code Ann., Tit. 11, § 4209(g) (1987);
Goode v.
State, 365 So. 2d
381, 384 (Fla.1978) (construing Fla.Stat. § 921.141(4) (1989));
Ill.Rev.Stat., ch. 110A, � 606(a) (1987);
Judy v. State,
275 Ind. 145, 157-158,
416 N.E.2d
95, 102 (1981) (construing Ind.Code § 35-50-2-9 (1988));
Mo.Rev.Stat. § 565.035 (1986); Nev.Rev.Stat. § 177.055(2) (1989);
Cole v. State, 101 Nev. 585, 590,
707 P.2d
545, 548 (1985); N.J.Stat.Ann. § 2C:113(e) (West Supp.1989);
Commonwealth v. McKenna, 476 Pa. 428, 439-440,
383 A.2d
174, 181 (1978) (construing predecessor statute to 42
Pa.Cons.Stat. § 9711(h) (1988)); Tenn.Code Ann. § 39-2-205 (1982);
State v. Holland, 777 P.2d 1019,
1022 (Utah 1989) (construing Utah Code Ann. § 77-35-26(10)
(Supp.1989));
see also Utah Code Ann. § 76-3-206(2)
(1978); Vt.Rule App.Proc. 3(b). Twenty-two States' statutes or
rules employ language indicating that their appellate courts must
review at least the sentence in every capital case. Ariz.Rule
Crim.Proc. 31.2(b); Colo.Rev.Stat. § 16-11-103(7)(a) (Supp.1989);
Conn.Gen.Stat. § 53a-46b (1985); Ga.Code Ann. § 17-10-35 (1982);
Idaho Code § 19-2827 (1987); Ky.Rev.Stat.Ann. § 532.075 (Michie
1985); La.Code Crim.Proc.Ann., Art. 905.9 (West 1984); Md.Ann.Code,
Art. 27, § 414 (1987); Miss.Code Ann. § 99-19-105 (Supp. 1989);
Mont.Code Ann. § 46-18-307 (1989); Neb.Rev.Stat. § 29-2525 (1989);
N.H.Rev.Stat.Ann. §.630:5(VI) (1986); N.M.Stat.Ann. § 31-20A-4
(1987); N.C.Gen.Stat. § 15A-2000(d)(1) (1988); Okla.Stat., Tit. 21,
§ 701.13 (Supp.1989); Ore.Rev.Stat. § 163.150(1)(g) (1989);
S.C.Code § 16-3-25 (1985); S.D.Codified Laws § 23A-27A-9 (1988);
Tex.Crim.Proc.Code Ann. § 37.071(h) (Supp. 1990); Va.Code §
17-110.1 (1988); Wash.Rev.Code § 10.95.100 (1989); Wyo.Stat. §
6-2-103 (1988). Ohio's rule as to waiver is unclear.
See
Ohio Rev.Code Ann. § 2929.05 (1987). In
State v. Brooks,
25 Ohio St.3d 144, 495 N.E.2d 407 (1986), however, both the Ohio
Court of Appeals and Ohio Supreme Court reviewed the defendant's
death sentence after the state court of appeals denied his motion
to withdraw his appeal.
[
Footnote 2/2]
Underlying the Court's decision may be the assumption that a
competent defendant would never waive his right to appeal unless he
was guilty of the crime and deserved to die.
See Franz v.
Lockhart, 700 F.
Supp. 1005, 1023 (ED Ark.1988),
appeal pending, No.
89-1485EA (CA8). There is no reason to believe, however, that only
defendants guilty of the most heinous crimes would choose death
over life in prison.
[
Footnote 2/3]
The question whether Whitmore may act as Simmons' next friend in
this Court is distinct from the question whether Whitmore could do
so in the Arkansas Supreme Court. This Court cannot impose federal
standing restrictions, whether derived from Article III or federal
common law, on state courts.
See ASARCO Inc. v. Kadish,
490 U. S. 605,
490 U. S. 620
(1989);
Department of Labor v. Triplett, 494 U.
S. 715,
494 U. S. 729
(1990) (MARSHALL, J., concurring in judgment). The Court's holding
thus affects only federal courts.
[
Footnote 2/4]
Despite the Court's suggestion, I cannot believe that this Court
would ever hold that a defendant judged incompetent to waive his
right to appeal could be executed without appellate review on the
ground that no one with a sufficiently close relation to him had
stepped forward to pursue the appeal. Rather, a court would be
required to appoint someone to represent such a defendant.
See
Franz v. Lockhart, supra, at 1011, n. 2.
See also
Carter, Maintaining Systemic Integrity in Capital Cases: The Use of
Court-Appointed Counsel to Present Mitigating Evidence When the
Defendant Advocates Death, 55 Tenn.L.R. 95 (1987).
[
Footnote 2/5]
In determining Simmons' competency to waive his right to seek
relief in this Court, the majority relies on the Arkansas trial
court's finding that Simmons was competent to waive his right to
appeal in state court.
Ante at
495 U. S.
165-166. At no point, however, has any court determined
that Simmons was competent to waive his right to petition this
Court for a writ of certiorari. Legal competency is not static.
Given that Simmons' life turns on this question, the Court should
at least require a specific determination that he was competent to
forgo petitioning this Court before it dismisses this case without
reaching the merits.
[
Footnote 2/6]
The Court suggests that some restriction on next friend standing
is necessary to prevent a litigant who asserts only a generalized
grievance from circumventing Article III's standing requirements.
Ante at
495 U. S. 164.
But as long as the real party in interest satisfies those standing
requirements, as Simmons clearly does, this Court will be presented
with an actual case or controversy. If the Court's suggestion were
true, it would necessitate abolishing next friend standing
entirely. In terms of Article III, a next friend who represents the
interests of an incompetent person with whom he has a significant
relation is no different from a next friend who pursues a claim on
behalf of a competent stranger; both rely wholly on the injury to
the real party in interest to satisfy constitutional standing
requirements.
[
Footnote 2/7]
Appeal to
stare decisis similarly cannot relieve the
Court of responsibility for today's disturbing decision. This case
is the first opportunity for this Court to address the next friend
issue raised here with the benefit of full briefing by the parties.
Four times the Court was presented with this question in the
context of applications for stays of executions filed by parties
other than the defendants. Three times the Court denied the
applications.
See Gilmore v. Utah, 429 U.S. 1012 (1976);
Evans v. Bennett, 440 U. S. 987
(1979);
Lenhard v. Wolff, 444 U.
S. 807 (1979). In
Gilmore, the Court stated
only that the competent defendant had knowingly and intelligently
waived any federal rights. 429 U.S. at 1013. In
Evans,
then-Justice REHNQUIST, in his capacity as Circuit Justice, stayed
the execution pending consideration by the full Court.
440 U.
S. 1301 (1979) (in chambers). The Court then denied the
application without opinion,
440 U. S. 987,
with Justice BRENNAN noting in his concurrence that a stay was not
necessary because the State had not set an execution date,
ibid. In
Lenhard, the Court did not issue an
opinion.
444 U.S. at
807. In
Rosenberg v. United States, 346 U.
S. 273 (1953), however, the Court did consider the
merits of an application to stay the executions of Julius and Ethel
Rosenberg filed by counsel for a man who had no connection to the
Rosenbergs and who had not participated in any proceedings related
to their case until the stay proceedings in this Court.
Id. at
346 U. S.
288-289 (per curiam );
id. at
346 U. S. 291
(Jackson, J., concurring) ("Edelman [the applicant] is a stranger
to the Rosenbergs and to their case. His intervention was
unauthorized by them and originally opposed by their counsel").
Justice Jackson's concurring opinion stated that the Court
"discountenance[d] this practice" of considering an argument not
originally pressed by the defendant's own counsel, where those
counsel were vigorously contesting the defendants' death sentences.
Id. at
346 U. S. 292.
Far more importantly, however, the Court did not dismiss the
application on the ground that the applicant did not satisfy the
common law requirements of next friend status, but addressed the
application on its merits.
Id. at
346 U. S. 289
(per curiam).
See also id. at
346 U. S. 294
(Clark, J., concurring) ("Human lives are at stake; we need not
turn this decision on fine points of procedure or a party's
technical standing to claim relief");
id. at
346 U. S.
299-300 (Black, J., dissenting) ("I cannot believe . . .
that if the sentence of a citizen to death is plainly illegal, this
Court would allow that citizen to be executed on the grounds that
his lawyers had
waived' plain error. An illegal execution is no
less illegal because a technical ground of `waiver' is assigned to
justify it"); id. at 346 U. S. 312
(Douglas, J., dissenting) ("[T]he question of an unlawful sentence
is never barred. No man or woman should go to death under an
unlawful sentence merely because his lawyer failed to raise the
point").
[
Footnote 2/8]
The Court's decision today, which rests on federal common law
developed in connection with habeas corpus cases,
ante at
495 U. S.
164-165, apparently applies to next friend standing in
habeas cases brought in federal district court as well as to
petitions for certiorari submitted to this Court. Congress could
amend the habeas statute (which provides only that "[a]pplication
for a writ of habeas corpus shall be in writing signed and verified
by the person for whose relief it is intended
or by someone
acting in his behalf," 28 U.S.C. § 2242 (emphasis added))
explicitly to permit next friend suits in cases of this sort, so as
to ensure some form of review of capital cases.