At the guilt phase of respondent's California state court trial,
the jury returned a verdict of guilt on a count of first-degree
murder, which is punishable under California law by death or life
imprisonment without the possibility of parole where an alleged
"special circumstance" (here the commission of murder during a
robbery) is found true by the jury at the guilt phase. In addition
to requiring jury instructions at the separate penalty phase on
aggravating and mitigating circumstances, California law requires
that the trial judge inform the jury that a sentence of life
imprisonment without the possibility of parole may be commuted by
the Governor to a sentence that includes the possibility of parole
(the so-called Briggs Instruction). At the penalty phase of
respondent's trial, the judge's instructions included the Briggs
Instruction. The jury returned a verdict of death. The California
Supreme Court affirmed respondent's conviction but reversed the
death penalty, concluding that the Briggs Instruction violated the
Federal Constitution, and remanded the case for a new penalty
phase.
Held:
1. The Federal Constitution does not prohibit an instruction
permitting a capital sentencing jury to consider the Governor's
power to commute a life sentence without possibility of parole. Pp.
463 U. S.
997-1009.
(a) The possible commutation of a life sentence does not
impermissibly inject an element too speculative for the jury's
consideration. By bringing to the jury's attention the possibility
that the defendant may be returned to society, the Briggs
Instruction invites the jury to assess whether the defendant is
someone whose probable future behavior makes it undesirable that he
be permitted to return to society, thus focusing the jury on the
defendant's probable future dangerousness. A jury's consideration
of the factor of future dangerousness was upheld in
Jurek v.
Texas, 428 U. S. 262. Nor
does giving the Briggs Instruction result in any diminution in the
reliability of the sentencing decision of the kind condemned in
Gardner v. Florida, 430 U. S. 349,
which held that a death sentence may not be imposed on the basis of
a presentence investigation report containing information that the
defendant has had no opportunity to explain or deny. The Briggs
Instruction gives the jury accurate information of which both the
defendant and his counsel are aware, and it does not preclude the
defendant from offering any evidence
Page 463 U. S. 993
or argument regarding the Governor's power to commute a life
sentence. Pp.
463 U. S.
1001-1004.
(b) The Briggs Instruction is not constitutionally infirm on the
asserted ground that it deflects the jury's focus from its central
task of undertaking an individualized sentencing determination. In
the sense that the instruction focuses attention on the defendant's
future dangerousness, the jury's deliberation is individualized.
Also, the California sentencing system ensures that the jury will
have before it information regarding the individual characteristics
of the defendant and his offense. The Briggs Instruction simply
places before the jury an additional element to be considered,
along with many other factors, in determining which sentence is
appropriate under the circumstances of the defendant's case. It
does not affect the jury's guilt/innocence determination.
Beck
v. Alabama, 447 U. S. 625,
distinguished. Finally, informing the jury of the Governor's power
to commute a sentence of life without possibility of parole is
merely an accurate statement of a potential sentencing alternative,
and corrects the misconception conveyed by the phrase "life
imprisonment without possibility of parole." Pp.
463 U. S.
1005-1009.
2. Nor is the Briggs Instruction unconstitutional because it
fails to inform the jury also of the Governor's power to commute a
death sentence. Even assuming,
arguendo, that the Briggs
Instruction has the impermissible effect of skewing the jury toward
imposing the death penalty, an instruction on the Governor's power
to commute death sentences as well as life sentences would not
restore "neutrality" or increase the reliability of the sentencing
choice. In fact, advising jurors that a death verdict is
theoretically modifiable, and thus not "final," may incline them to
approach their sentencing decision with less appreciation for the
gravity of their choice and for the moral responsibility reposed in
them as sentencers. Thus, an instruction disclosing the Governor's
power to commute a death sentence may operate to the defendant's
distinct disadvantage. Moreover, the Briggs Instruction alone does
not impermissibly impel the jury toward voting for the death
sentence. This information is relevant and factually accurate, and
was properly before the jury, and the trial judge's instructions
did not emphasize the role of this factor in the jury's decision.
Pp.
463 U. S.
1010-1012.
3. The conclusion that the Eighth and Fourteenth Amendments do
not prohibit an instruction regarding a Governor's power to commute
a life sentence does not override the judgment of state
legislatures that capital sentencing juries should not be permitted
to consider such matter. The States are free to provide greater
protections in their criminal justice system than the Federal
Constitution requires. Pp.
463 U. S. 1013-1014.
30 Cal. 3d
553, 639 P.2d 908, reversed and remanded.
Page 463 U. S. 994
O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, and in Parts II, III, IV, and V of which BLACKMUN, J.,
joined,
post, p.
463 U. S.
1015. BLACKMUN, J.,
post, p.
463 U. S.
1028, and STEVENS, J.,
post, p.
463 U. S.
1029, filed dissenting opinions.
JUSTICE O'CONNOR delivered the opinion of the Court.
This case requires us to consider the constitutionality under
the Eighth and Fourteenth Amendments of instructing a capital
sentencing jury regarding the Governor's power to commute a
sentence of life without possibility of parole. Finding no
constitutional defect in the instruction, we reverse the decision
of the Supreme Court of California and remand for further
proceedings.
I
On the night of June 2, 1979, respondent Marcelino Ramos
participated in the robbery of a fast-food restaurant where he was
employed as a janitor. As respondent's codefendant placed a food
order, respondent entered the restaurant, went behind the front
counter into the work area, ostensibly for the purpose of checking
his work schedule, and emerged with a gun. Respondent directed the
two employees working that night into the restaurant's walk-in
refrigerator and ordered them to face the back wall. Respondent
entered and emerged from the refrigerator several times, inquiring
at one point about the keys to the restaurant safe. When he entered
for the last time, he instructed the two employees to
Page 463 U. S. 995
kneel on the floor of the refrigerator, to remove their hats,
and to pray. Respondent struck both on the head and then shot them,
wounding one and killing the other.
Respondent was charged with robbery, attempted murder, and
first-degree murder. Defense counsel presented no evidence at the
guilt phase of respondent's trial, and the jury returned a verdict
of guilt on all counts. Under California law, first-degree murder
is punishable by death or life imprisonment without the possibility
of parole where an alleged "special circumstance" is found true by
the jury at the guilt phase. [
Footnote 1] At the separate penalty phase, respondent
presented extensive evidence in an attempt to mitigate punishment.
[
Footnote 2] In addition to
requiring jury instructions on aggravating and mitigating
circumstances, [
Footnote 3]
California law requires that the trial judge inform the jury that a
sentence of life imprisonment without the possibility of parole may
be commuted by the Governor to a sentence that includes the
possibility of parole. [
Footnote
4] At the penalty phase of respondent's trial, the judge
delivered the following instruction:
"You are instructed that, under the State Constitution, a
Governor is empowered to grant a reprieve, pardon, or
Page 463 U. S. 996
commutation of a sentence following conviction of a crime."
"Under this power, a Governor may in the future commute or
modify a sentence of life imprisonment without possibility of
parole to a lesser sentence that would include the possibility of
parole."
Tr. 1189-1190. [
Footnote 5]
The jury returned a verdict of death.
On appeal, the Supreme Court of California affirmed respondent's
conviction, but reversed the death sentence, concluding that the
Briggs Instruction required by Cal.Penal Code Ann. § 190.3 (West
Supp.1983) violated the Federal Constitution.
30 Cal. 3d
553, 639 P.2d 908 (1982). The court found two constitutional
flaws in the instruction. First, it invites the jury to consider
factors that are foreign to its task of deciding whether the
defendant should live or die. According to the State Supreme Court,
instead of assuring that this decision rests on "consideration of
the character and record of the individual offender and the
circumstances of the particular offense,"
Woodson v. North
Carolina, 428 U. S. 280,
428 U. S. 304
(1976), the instruction focuses the jury's attention on the
Governor's power to render the defendant eligible for parole if the
jury does not vote to execute him, and injects an entirely
speculative element into the capital sentencing determination.
Second, the court concluded that, because the instruction does not
also inform the jury that the Governor possesses the power to
commute a death sentence, it leaves the jury with the mistaken
belief that the only way to keep the defendant off the streets is
to condemn him to death. Accordingly, the court remanded for a new
penalty phase. [
Footnote 6]
Page 463 U. S. 997
We granted certiorari, 459 U.S. 821 (1982), and now reverse and
remand. [
Footnote 7]
II
In challenging the constitutionality of the Briggs Instruction,
respondent presses upon us the two central arguments
Page 463 U. S. 998
advanced by the Supreme Court of California in its decision. He
contends (1) that a capital sentencing jury may not
constitutionally consider [
Footnote
8] possible commutation, and (2) that the Briggs Instruction
unconstitutionally misleads the jury by selectively informing it of
the Governor's power to commute one of its sentencing choices but
not the other. Respondent's first argument raises two related but
distinct concerns --
viz., that the power of commutation
is so speculative a factor that it injects an unacceptable level of
unreliability into the capital sentencing determination, and that
consideration of this factor deflects the jury from its
constitutionally mandated task of basing the penalty decision on
the character of the defendant and the nature of the offense. We
address these points in
463 U. S. S.
1005|>II-C,
infra, and respondent's second argument in
463 U. S.
infra. Before turning to the specific contentions of
respondent's first argument, however, we examine the general
principles that have guided this Court's pronouncements regarding
the proper range of considerations for the sentencer in a capital
case.
A
The Court, as well as the separate opinions of a majority of the
individual Justices, has recognized that the qualitative difference
of death from all other punishments requires a correspondingly
Page 463 U. S. 999
greater degree of scrutiny of the capital sentencing
determination. [
Footnote 9] In
ensuring that the death penalty is not meted out arbitrarily or
capriciously, the Court's principal concern has been more with the
procedure by which the State imposes the death sentence than with
the substantive factors the State lays before the jury as a basis
for imposing death, once it has been determined that the defendant
falls within the category of persons eligible for the death
penalty. In
Gregg v. Georgia, 428 U.
S. 153 (1976), and its companion cases, [
Footnote 10] the Court reviewed the capital
sentencing schemes of five States to determine whether those
schemes had cured the constitutional defects identified in
Furman v. Georgia, 408 U. S. 238
(1972). In
Gregg itself, the joint opinion of JUSTICES
Stewart, POWELL, and STEVENS concluded that the Georgia sentencing
scheme met the concerns of
Furman by providing a
bifurcated proceeding, instruction on the factors to be considered,
and meaningful appellate review of each death sentence. 428 U.S. at
428 U. S.
189-19. Satisfied that these procedural safeguards
"suitably directed and limited" the jury's discretion "so as to
minimize the risk of wholly arbitrary and capricious action,"
id. at
428 U. S. 189,
the joint opinion did not undertake to dictate to the State the
particular
substantive factors that should be deemed
relevant to the capital sentencing decision. Indeed, the joint
opinion observed:
"It seems clear that the problem [of channeling jury
discretion]
Page 463 U. S. 1000
will be alleviated if the jury is given guidance regarding the
factors about the crime and the defendant
that the State,
representing organized society, deems particularly relevant to the
sentencing decision."
Id. at
428 U. S. 192
(emphasis added).
See also id. at
428 U. S. 176
("The deference we owe to the decisions of the state legislatures
under our federal system . . . is enhanced where the specification
of punishments is concerned, for
these are peculiarly questions
of legislative policy'"). [Footnote 11] It would be erroneous to suggest, however,
that the Court has imposed no substantive limitations on the
particular factors that a capital sentencing jury may consider in
determining whether death is appropriate. In Gregg itself,
the joint opinion suggested that excessively vague sentencing
standards might lead to the arbitrary and capricious sentencing
patterns condemned in Furman. 428 U.S. at 428 U. S. 195,
n. 46. [Footnote 12]
Moreover, in Woodson v. North Carolina, 42 U.
S. 20 (1976), the plurality concluded that a State must
structure its capital sentencing procedure to permit consideration
of the
Page 463 U. S. 1001
individual characteristics of the offender and his
crime. [
Footnote 13] This
principle of individualization was extended in
Lockett v.
Ohio, 438 U. S. 586
(1978), where the plurality determined that
"the Eighth and Fourteenth Amendments require that the sentencer
[in a capital case] not be precluded from considering,
as a
mitigating factor, any aspect of a defendant's character or
record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death."
Id. at
438 U. S. 604
(emphasis in original; footnotes omitted). [
Footnote 14] Finally, in
Gardner v.
Florida, 430 U. S. 349
(1977), a plurality of the Court held that a death sentence may not
be imposed on the basis of a presentence investigation report
containing information that the defendant has had no opportunity to
explain or deny.
Beyond these limitations, as noted above, the Court has deferred
to the State's choice of substantive factors relevant to the
penalty determination. In our view, the Briggs Instruction does not
run afoul of any of these constraints.
B
Addressing respondent's specific arguments, we find unpersuasive
the suggestion that the possible commutation of a life sentence
must be held constitutionally irrelevant [
Footnote 15] to the
Page 463 U. S. 1002
sentencing decision and that it is too speculative an element
for the jury's consideration. On this point, we find
Jurek v.
Texas, 428 U. S. 262
(1976), controlling.
The Texas capital sentencing system upheld in
Jurek
limits capital homicides to intentional and knowing murders
committed in five situations.
Id. at
428 U. S. 268.
Once the jury finds the defendant guilty of one of these five
categories of murder, the jury must answer three statutory
questions. [
Footnote 16] If
the jury concludes that the State has proved beyond a reasonable
doubt that each question is answered in the affirmative, then the
death sentence is imposed. In approving this statutory scheme, the
joint opinion in
Jurek rejected the contention that the
second statutory question -- requiring consideration of the
defendant's future dangerousness -- was unconstitutionally vague
because it involved prediction of human behavior.
"It is, of course, not easy to predict future behavior. The fact
that such a determination is difficult, however, does not mean that
it cannot be made. Indeed, prediction of future criminal conduct is
an essential element in many of the decisions rendered throughout
our criminal justice system. . . . And any sentencing authority
must predict a convicted person's probable future conduct when it
engages in the process of determining what punishment to impose.
For those sentenced to prison, these same predictions must be made
by parole authorities. The task that a Texas jury must perform in
answering
Page 463 U. S. 1003
the statutory question in issue is thus basically no different
from the task performed countless times each day throughout the
American system of criminal justice. What is essential is that the
jury have before it all possible relevant information about the
individual defendant whose fate it must determine. Texas law
clearly assures that all such evidence will be adduced."
Id. at
428 U. S.
274-276 (footnotes omitted).
By bringing to the jury's attention the possibility that the
defendant may be returned to society, the Briggs Instruction
invites the jury to assess whether the defendant is someone whose
probable future behavior makes it undesirable that he be permitted
to return to society. Like the challenged factor in Texas'
statutory scheme, then, the Briggs Instruction focuses the jury on
the defendant's probable future dangerousness. [
Footnote 17] The approval in
Jurek
of explicit consideration of this factor in the capital sentencing
decision defeats respondent's contention that, because of the
speculativeness involved, the State of California may not
constitutionally permit consideration of commutation. [
Footnote 18]
Page 463 U. S. 1004
Nor is there any diminution in the reliability of the sentencing
decision of the kind condemned in
Gardner v. Florida,
430 U. S. 349
(1977). In
Gardner, the Court reversed a death sentence
that had been imposed in part on the basis of a confidential
portion of a presentence investigation report that had not been
disclosed to either the defendant or his counsel. Because of the
potential that the sentencer might have rested its decision in part
on erroneous or inaccurate information that the defendant had no
opportunity to explain or deny, the need for reliability in capital
sentencing dictated that the death penalty be reversed.
Gardner provides no support for respondent. The Briggs
Instruction gives the jury accurate information of which both the
defendant and his counsel are aware, and it does not preclude the
defendant from offering any evidence or argument regarding the
Governor's power to commute a life sentence. [
Footnote 19]
Page 463 U. S. 1005
C
Closely related to, yet distinct from, respondent's
speculativeness argument is the contention that the Briggs
Instruction is constitutionally infirm because it deflects the
jury's focus from its central task. Respondent argues that the
commutation instruction diverts the jury from undertaking the kind
of individualized sentencing determination that, under
Woodson
v. North Carolina, 428 U.S. at
428 U. S. 304,
is "a constitutionally indispensable part of the process of
inflicting the penalty of death."
As we have already noted,
supra, at
463 U. S.
1003, as a functional matter, the Briggs Instruction
focuses the jury's attention on whether this particular defendant
is one whose possible return to society is desirable. In this
sense, then, the jury's deliberation is individualized. The
instruction invites the jury to predict not so much what some
future Governor might do, but more what the defendant himself might
do if released into society.
Any contention that injecting this factor into the jury's
deliberations constitutes a departure from the kind of
individualized focus required in capital sentencing decisions
was
Page 463 U. S. 1006
implicitly rejected by the decision in
Jurek. Indeed,
after noting that consideration of the defendant's future
dangerousness was an inquiry common throughout the criminal justice
system, the joint opinion of JUSTICES Stewart, POWELL, and STEVENS
observed:
"What is essential is that the jury have before it all possible
relevant information about the individual defendant whose fate it
must determine. Texas law clearly assures that all such evidence
will be adduced."
428 U.S. at
428 U. S. 276.
As with the Texas scheme, the California sentencing system ensures
that the jury will have before it information regarding the
individual characteristics of the defendant and his offense,
including the nature and circumstances of the crime and the
defendant's character, background, history, mental condition, and
physical condition. Cal.Penal Code Ann. § 190.3 (West Supp.1983).
[
Footnote 20]
Respondent also relies on
Beck v. Alabama, 447 U.
S. 625 (1980), as support for his contention that the
Briggs Instruction undermines the jury's responsibility to make an
individualized sentencing determination. In
Beck, the
Court held that the jury in a capital case must be permitted to
consider a
Page 463 U. S. 1007
verdict of guilt of a noncapital offense where the evidence
would support such a verdict. In disapproving the Alabama statute
that precluded giving a lesser included offense charge in capital
cases, the Court concluded that the chief flaw of the statute
"is that it interjects irrelevant considerations into the
factfinding process, diverting the jury's attention from the
central issue of whether the State has satisfied its burden of
proving beyond a reasonable doubt that the defendant is guilty of a
capital crime."
Id. at
447 U. S. 642.
The failure to give a lesser included offense instruction
"diverted" the jury in two ways: a jury might convict a defendant
of a capital offense because of its belief that he is guilty of
some crime, or, given the mandatory nature of the death
penalty under Alabama law, the jury might acquit because it does
not think that the defendant's crime warrants death.
Id.
at
447 U. S.
642-643. According to the respondent, the Briggs
Instruction, like the removal of the lesser included offense option
in
Beck, predisposes the jury to act without regard to
whether the death penalty is called for on the facts before it.
We are unconvinced that the Briggs Instruction constrains the
jury's sentencing choice in the manner condemned in
Beck.
Restricting the jury in
Beck to the two sentencing
alternatives -- conviction of a capital offense or acquittal -- in
essence placed artificial alternatives before the jury. The
unavailability of the "third option" thereby created the risk of an
unwarranted conviction. By contrast, the Briggs Instruction does
not
limit the jury to two sentencing choices, neither of
which may be appropriate. Instead, it places before the jury an
additional element to be considered, along with many other factors,
in determining which sentence is appropriate under the
circumstances of the defendant's case.
More to the point, however, is the fundamental difference
between the nature of the guilt/innocence determination at issue in
Beck and the nature of the life/death choice at the
penalty phase. As noted above, the Court in
Beck
identified the chief vice of Alabama's failure to provide a lesser
included
Page 463 U. S. 1008
offense option as deflecting the jury's attention from
"the
central issue of whether the State has satisfied
its burden of proving beyond a reasonable doubt that the defendant
is guilty of a capital crime."
Id. at
447 U. S. 642
(emphasis added). In returning a conviction, the jury must satisfy
itself that the necessary elements of the particular crime have
been proved beyond a reasonable doubt. In fixing a penalty,
however, there is no similar "central issue" from which the jury's
attention may be diverted. [
Footnote 21] Once the jury finds that the defendant falls
within the legislatively defined category of persons eligible for
the death penalty, as did respondent's jury in determining the
truth of the alleged special circumstance, the jury then is free to
consider a myriad of factors to determine whether death is the
appropriate punishment. In this sense, the jury's choice between
life and death must be individualized.
"But the Constitution does not require the jury to ignore other
possible . . . factors in the process of selecting . . . those
defendants who will actually be sentenced to death."
Zant v. Stephens, 462 U. S. 862,
462 U. S. 878
(1983) (footnote omitted). As we have noted, the essential effect
of the Briggs Instruction is to inject into the sentencing calculus
a consideration akin to the aggravating factor of future
dangerousness in the Texas scheme.
See supra at
463 U. S.
1003. This element
"is simply one of the countless considerations weighed by the
jury in seeking to judge the punishment appropriate to the
individual defendant."
462 U.S. at
462 U. S. 900
(REHNQUIST, J., concurring in judgment). [
Footnote 22]
Page 463 U. S. 1009
In short, the concern of
Beck regarding the risk of an
unwarranted conviction is simply not directly translatable to the
deliberative process in which the capital jury engages in
determining the appropriate penalty, where there is no single
determinative issue apart from the general concern that the penalty
be tailored to the individual defendant and the offense.
Finally, we emphasize that informing the jury of the Governor's
power to commute a sentence of life without possibility of parole
was merely an accurate statement of a potential sentencing
alternative. To describe the sentence as "life imprisonment
without possibility of parole" is simply inaccurate when,
under state law, the Governor possesses authority to commute that
sentence to a lesser sentence that includes the possibility of
parole. The Briggs Instruction thus corrects a misconception and
supplies the jury with accurate information for its deliberation in
selecting an appropriate sentence. [
Footnote 23]
See also n 18,
supra.
Page 463 U. S. 1010
III
Having concluded that a capital sentencing jury's consideration
of the Governor's power to commute a life sentence is not
prohibited by the Federal Constitution, we now address respondent's
contention that the Briggs Instruction must be held
unconstitutional because it fails to inform jurors also that a
death sentence may be commuted. [
Footnote 24] In essence, respondent complains that the
Briggs Instruction creates the misleading impression that the jury
can prevent the defendant's return to society only by imposing the
death sentence, thus biasing the jury in favor of death. Respondent
therefore concludes that,
"[i]f . . . commutation is a factor properly
Page 463 U. S. 1011
to be considered by the jury, then basic principles of fairness
require that full disclosure be made with respect to
commutation."
Brief for Respondent 35-36.
Thus, according to respondent, if the Federal Constitution
permits the jury to consider possible commutation of a life
sentence, the Federal Constitution requires that the jury also be
instructed that a death sentence may be commuted. We find
respondent's argument puzzling. [
Footnote 25] If, as we must assume, respondent's
principal objection is that the impact of the Briggs Instruction is
to skew the jury toward imposing death, we fail to see how an
instruction on the Governor's power to commute death sentences as
well as life sentences restores the situation to one of
"neutrality." Although such an instruction would be "neutral" in
the sense of giving the jury complete and factually accurate
information about the commutation power, it would not "balance" the
impact of the Briggs Instruction, even assuming,
arguendo,
that the current instruction has any impermissible skewing effect.
Disclosure of the complete nature of the commutation power would
not eliminate any skewing in favor of death or increase the
reliability of the sentencing choice. A jury concerned about
preventing the defendant's potential return to society will not be
any less inclined to vote for the death penalty upon learning that
even a death sentence may not have such an effect. In fact,
advising jurors that a death verdict is theoretically modifiable,
and thus not "final," may incline them to approach their sentencing
decision with less appreciation for the gravity of their choice and
for the moral responsibility reposed in them as sentencers.
In short, an instruction disclosing the Governor's power to
commute a death sentence may operate to the defendant's distinct
disadvantage. It is precisely this perception that
Page 463 U. S. 1012
the defendant is prejudiced by an instruction on the possible
commutation of a death sentence that led the California Supreme
Court, in
People v. Morse, 60 Cal. 2d
631, 388 P.2d 33 (1964), to prohibit the giving of such an
instruction. [
Footnote 26]
Thus, state law at the time of respondent Ramos' trial precluded
the giving of the "other half " of the commutation instruction that
respondent now argues is constitutionally required. [
Footnote 27]
Moreover, we are not convinced by respondent's argument that the
Briggs Instruction alone impermissibly impels the jury toward
voting for the death sentence. Any aggravating factor presented by
the prosecution has this impact. As we concluded in
463 U.
S. supra, the State is constitutionally
entitled to permit juror consideration of the Governor's power to
commute a life sentence. This information is relevant and factually
accurate, and was properly before the jury. Moreover, the trial
judge's instructions "did not place particular emphasis on the role
of [this factor] in the jury's ultimate decision." [
Footnote 28]
Zant v. Stephens, 462
U.S. at
462 U. S. 889;
cf. id. at
462 U. S.
888-891. [
Footnote
29]
Page 463 U. S. 1013
IV
In sum, the Briggs Instruction does not violate any of the
substantive limitations this Court's precedents have imposed on the
capital sentencing process. It does not preclude individualized
sentencing determinations or consideration of mitigating factors,
nor does it impermissibly inject an element too speculative for the
jury's deliberation. Finally, its failure to inform the jury also
of the Governor's power to commute a death sentence does not render
it constitutionally infirm. Therefore, we defer to the State's
identification of the Governor's power to commute a life sentence
as a substantive factor to be presented for the sentencing jury's
consideration.
Our conclusion is not intended to override the contrary judgment
of state legislatures that capital sentencing juries in their
States should not be permitted to consider the Governor's power to
commute a sentence. [
Footnote
30] It is elementary that
Page 463 U. S. 1014
States are free to provide greater protections in their criminal
justice system than the Federal Constitution requires. We sit as
judges, not as legislators, and the wisdom of the decision to
permit juror consideration of possible commutation is best left to
the States. We hold only that the Eighth and Fourteenth Amendments
do not prohibit such an instruction.
The judgment of the Supreme Court of California is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion.
It is so ordered.
Page 463 U. S. 1015
[
Footnote 1]
See Cal.Penal Code Ann. § 190.2 (West Supp.1983). The
alleged special circumstance found true in respondent's case was
commission of the murder during the course of a robbery. §
190.2(a)(17)(i).
[
Footnote 2]
Respondent offered evidence to show,
inter alia, that
his adoptive parents had died while he was young, that he then came
under the bad influence of his codefendant, that respondent had
mild congenital brain damage, a low intelligence quotient, and
borderline schizophrenia, that he was under the influence of
alcohol and drugs at the time of the offenses, and that he intended
only to "graze" the victims when he shot them.
[
Footnote 3]
The jury "shall impose a sentence of death if [it] concludes
that the aggravating circumstances outweigh the mitigating
circumstances" and "shall impose" a sentence of life without
possibility of parole if the mitigating circumstances outweigh the
aggravating circumstances. Cal.Penal Code Ann. § 190.3 (West
Supp.1983).
[
Footnote 4]
Ibid. This instruction, referred to hereinafter as the
"Briggs Instruction," was incorporated into the California Penal
Code as a result of a 1978 voter initiative popularly known as the
Briggs Initiative.
[
Footnote 5]
The trial judge gave the instruction over the objection of
respondent on the ground that the instruction was mandated by
legislation. Tr. 718.
[
Footnote 6]
In dissent, Justice Richardson concluded that the Briggs
Instruction was harmless and nonprejudicial, because it merely
informs jurors of information that is a matter of common knowledge.
Further, the instruction is relevant because the issue of parole is
injected into the sentencing process by one of the alternative
punishments the jury must consider: life imprisonment without
possibility of parole. In addition, the dissent concluded that the
instruction's failure also to inform the jury of the Governor's
power to commute a death sentence did not render it
constitutionally infirm. In
People v.
Morse, 60 Cal. 2d
631, 388 P.2d 33 (1964), the court had held, on the basis of
its supervisory powers, that jurors should not be instructed that a
death sentence could be commuted because it reduced the jury's
sense of responsibility in imposing a capital sentence. Therefore,
the Briggs Instruction should not be struck down because it fails
to require an instruction of the type condemned in
Morse.
[
Footnote 7]
The Supreme Court of California also concluded that certain
testimony by the defense psychiatrist was inadmissible as a matter
of state evidence law. Over defense objection, at the penalty
phase, the prosecutor had been allowed to elicit on
cross-examination of the psychiatrist that respondent was aware of
the Governor's power to commute a life sentence without parole to a
lesser sentence that included the possibility of parole. According
to the psychiatrist, respondent had indicated that, were he to be
released on parole after 10 or 20 years in prison,
"he would probably have built up within himself such feelings of
anger and frustration that he would attempt to take revenge on
anyone involved in the trial, including the district attorney who
prosecuted the case, the judge who presided over it, and the jurors
who voted to convict him."
30 Cal. 3d
553, 598, 639 P.2d 908, 934 (1982) (footnote omitted). The
State Supreme Court ruled that the trial court had abused its
discretion in admitting this testimony, because the prejudice
created by admission of the testimony outweighed its probative
value.
See Cal.Evid.Code Ann. § 352 (West 1966).
Respondent argues that this Court should not reach the
constitutional issues raised by the State, because the above ruling
represents a possible adequate and independent state ground for the
State Supreme Court's decision to reverse the death sentence. We
find no bar to reaching the federal questions. The State Supreme
Court quite clearly rested its reversal of the death sentence
solely on the Federal Constitution. 30 Cal. 3d at 562, 600, 639
P.2d at 912, 936. Moreover, with respect to its ruling on the
evidentiary question, the court did not determine whether this
error warranted reversal of the death penalty. It held only that
the testimony "should not be admitted if the penalty phase is
retried."
Id. at 598, n. 22, 639 P.2d at 934, n. 22.
Therefore, the adequacy of this ruling to support reversal of the
sentence was not addressed by the state court.
See Michigan v.
Long, post, p.
463 U. S. 1032.
Of course, on remand from this Court, the state court is free to
determine whether, as a matter of state law, this evidentiary error
is a sufficient basis for reversing the death sentence.
In addition, the Supreme Court of California expressly declined
to decide whether the Briggs Instruction independently violates any
provisions of the State Constitution. 30 Cal. 3d at 600, n. 24, 639
P.2d at 936, n. 24. As with the evidentiary issue, of course, the
state court may address this question on remand.
[
Footnote 8]
The Supreme Court of California construed the Briggs Instruction
as inviting capital sentencing juries to consider the commutation
power in its sentencing determination.
See id. at 699-600,
639 P.2d at 935-936. We view the statute accordingly.
[
Footnote 9]
See Eddings v. Oklahoma, 455 U.
S. 104,
455 U. S.
117-118 (1982) (O'CONNOR, J., concurring);
Beck v.
Alabama, 447 U. S. 625,
447 U. S.
637-638 (1980) (opinion of STEVENS, J., joined by
BURGER, C.J., and BRENNAN, Stewart, BLACKMUN, and POWELL, JJ.);
Lockett v. Ohio, 438 U. S. 586,
438 U. S. 604
(1978) (opinion of BURGER, C.J., joined by Stewart, POWELL, and
STEVENS, JJ.);
Gardner v. Florida, 430 U.
S. 349,
430 U. S.
357-358 (1977) (opinion of STEVENS, J., joined by
Stewart, and POWELL, JJ.);
id. at
430 U. S.
363-364 (WHITE, J., concurring in judgment);
Woodson
v. North Carolina, 428 U. S. 280,
428 U. S. 305
(1976) (opinion of Stewart, POWELL, and STEVENS, JJ.).
[
Footnote 10]
Proffitt v. Florida, 428 U. S. 242
(1976);
Jurek v. Texas, 428 U. S. 262
(1976);
Woodson v. North Carolina, supra, (plurality
opinion);
Roberts v. Louisiana, 428 U.
S. 325 (1976) (plurality opinion).
[
Footnote 11]
Moreover, in approving the sentencing schemes of Georgia,
Florida, and Texas, the joint opinions of JUSTICES Stewart, POWELL,
and STEVENS did not substitute their views for those of the state
legislatures as to the particular substantive factors chosen to
narrow the class of defendants eligible for the death penalty. For
example, under the Georgia scheme examined in
Gregg, at
least 1 of 10 specified aggravating circumstances must be found
beyond a reasonable doubt before the jury may consider whether
death is the appropriate punishment for the individual defendant.
428 U.S. at
428 U. S.
164-165. By contrast, under the Texas scheme approved in
Jurek v. Texas, supra, the State attempted to limit the
category of defendants upon whom the death sentence may be imposed
by narrowing capital homicides to intentional and knowing murders
committed in five particular situations.
See id. at
428 U. S. 268.
In upholding the Texas scheme, the joint opinion observed:
"While Texas has not adopted a list of statutory aggravating
circumstances the existence of which can justify the imposition of
the death penalty, as have Georgia and Florida, its action in
narrowing the categories of murders for which a death sentence may
ever be imposed serves much the same purpose."
Id. at
428 U. S.
270.
[
Footnote 12]
Cf. Godfrey v. Georgia, 446 U.
S. 420 (1980) (reversing death sentence that rested on
unconstitutionally broad and vague construction of an aggravating
circumstance).
[
Footnote 13]
"[W]e believe that in capital cases the fundamental respect for
humanity underlying the Eighth Amendment . . . requires
consideration of the character and record of the individual
offender and the circumstances of the particular offense as a
constitutionally indispensable part of the process of inflicting
the penalty of death."
Woodson, supra, at
428 U. S. 304.
See also Gregg v. Georgia, 428 U.S. at
428 U. S. 189
(quoting
Pennsylvania ex rel. Sullivan v. Ashe,
302 U. S. 51,
302 U. S. 55
(1937)).
[
Footnote 14]
See also Zant v. Stephens, 462 U.
S. 862,
462 U. S. 879
(1983);
id. at
462 U. S. 900
(REHNQUIST, J., concurring in judgment);
Enmund v.
Florida, 458 U. S. 782,
458 U. S. 798
(1982);
id. at
458 U. S.
827-828 (O'CONNOR, J., dissenting);
Eddings v.
Oklahoma, 455 U.S. at
455 U. S. 110-112;
id. at
455 U. S. 118
(O'CONNOR, J., concurring);
id. at
455 U. S.
121-122 (BURGER, C.J., dissenting).
[
Footnote 15]
See also 30 Cal. 3d at 596, 639 P.2d at 933 ("[The
Briggs Instruction] injects into the sentencing calculus an
entirely irrelevant factor . . .");
id. at 600, 639 P.2d
at 935.
[
Footnote 16]
The questions are:
"'(1) whether the conduct of the defendant that caused the death
of the deceased was committed deliberately and with the reasonable
expectation that the death of the deceased or another would
result;"
"'(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and"
"'(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased.' Art. 37.071(b)
(Supp.1975-1976)."
428 U.S. at
428 U. S.
269.
[
Footnote 17]
This analogy between the matters raised in the jurors' minds by
the Briggs Instruction and the Texas statutory factor of the
defendant's future dangerousness is no "intellectual sleight of
hand."
Post at
463 U. S.
1029 (BLACKMUN, J., dissenting). To avoid this analogy
is to ignore the process of thought that the Briggs Instruction
inevitably engenders in the jury's deliberations. To be sure, the
Briggs Instruction, by its terms, may incline their thoughts to the
probability that the current or some future Governor might commute
the defendant's sentence. Nevertheless, whatever the jurors'
thoughts on this probability alone, the inextricably linked thought
is whether it is desirable that this defendant be released into
society. In evaluating this question, the jury will consider the
defendant's potential for reform and whether his probable future
behavior counsels against the desirability of his release into
society.
[
Footnote 18]
See also ABA Standards for Criminal Justice
18-2.5(c)(i) (2d ed.1980) (giving as example of legitimate reason
for selecting total confinement fact that "[c]onfinement is
necessary in order to protect the public from further serious
criminal activity by the defendant").
We also observe that, with respect to the relevance of the
information conveyed by the Briggs Instruction, the issue of parole
or commutation is presented by the language used to describe one of
the jury's sentencing choices --
i.e., life imprisonment
without possibility of parole. The State of California reasonably
could have concluded that, while jurors are generally aware of the
Governor's power to commute a death sentence, most jurors would not
be aware that the Governor also may commute a sentence of life
imprisonment without possibility of parole, and that they should be
so informed to avoid any possible misconception conveyed by the
description of the sentencing alternative.
[
Footnote 19]
In dissent, JUSTICE MARSHALL argues that, if a balanced
instruction cannot or should not be given, "the solution is not to
permit a misleading instruction, but to prohibit altogether any
instruction concerning commutation."
Post at
463 U. S.
1017-1018. This observation is incorrect for at least
two reasons. First, as discussed below,
see n 27,
infra, we do not suggest
that there would be any federal constitutional infirmity in giving
an instruction concerning the Governor's power to commute the death
sentence. We note only that such comment is prohibited under state
law. Second, the Briggs Instruction simply is not misleading. On
the contrary, the instruction gives the jury accurate information
in that it corrects a misleading description of a sentencing choice
available to the jury. Although, as Justice Richardson noted below,
30 Cal. 3d at 605, 639 P.2d at 938, most jurors may have a general
awareness of the availability of commutation and parole, the
statutory description of one of the sentencing choices as "life
imprisonment without possibility of parole" may generate the
misleading impression that the Governor could not commute this
sentence to one that included the possibility of parole. The Briggs
Instruction merely dispels that possible misunderstanding. Further,
the defendant may offer evidence or argument regarding the
commutation power, and respondent's counsel addressed the
possibility of the Governor's commutation of a life sentence in his
closing argument. Tr. 1161-1162. The Briggs Instruction thereby
accomplishes the same result that would occur if, instead of
requiring the Briggs Instruction, the State merely described the
sentence statutorily as "life imprisonment with possibility of
commutation." Surely, the respondent cannot argue that the
Constitution prohibits the State from accurately characterizing its
sentencing choices.
We note further that respondent does not, and indeed could not,
contend that the California sentencing scheme violates the
directive of
Lockett v. Ohio, 438 U.
S. 586 (1978). The California statute in question
permits the defendant to present any evidence to show that a
penalty less than death is appropriate in his case. Cal.Penal Code
Ann. § 190.3 (West Supp.1983).
[
Footnote 20]
In addition, we note that there is no assurance that a Texas
jury acts on a more particularized and less speculative
informational base when it considers the defendant's future
dangerousness than does a California jury. In
Estelle v.
Smith, 451 U. S. 454
(1981), the Court noted that expert psychiatric testimony about the
defendant is not necessary to prove the defendant's future
dangerousness under the Texas scheme.
"[U]nder the Texas capital sentencing procedure, the inquiry
necessary for the jury's resolution of the future dangerousness
issue is in no sense confined to the province of psychiatric
experts. . . ."
* * * *
"While in no sense disapproving the use of psychiatric testimony
bearing on the issue of future dangerousness, the holding in
Jurek was guided by recognition that the inquiry mandated
by Texas law does not require resort to medical experts."
Id. at
451 U. S.
472-473. Consequently, as in the California scheme, a
Texas jury's evaluation of the defendant's future dangerousness may
rest on lay testimony about the defendant's character and
background and the inferences to be drawn therefrom.
[
Footnote 21]
"[S]entencing decisions rest on a far-reaching inquiry into
countless facts and circumstances, and not on the type of proof of
particular elements that returning a conviction does."
Zant v. Stephens, 462 U.S. at
462 U. S. 902
(REHNQUIST, J., concurring in judgment).
[
Footnote 22]
Consideration of the commutation power does not undermine the
jury's statutory responsibility to weigh aggravating factors
against mitigating factors and impose death only if the former
outweigh the latter. The desirability of the defendant's release
into society is simply one matter that enters into the weighing
process. Moreover, the fact that the jury is given no specific
guidance on how the commutation factor is to figure into its
determination presents no constitutional problem. As we held in
Zant v. Stephens, supra, the constitutional prohibition on
arbitrary and capricious capital sentencing determinations is not
violated by a capital sentencing
"scheme that permits the jury to exercise unbridled discretion
in determining whether the death penalty should be imposed after it
has found that the defendant is a member of the class made eligible
for that penalty by statute."
Id. at
462 U. S.
875.
[
Footnote 23]
See also ALI, Model Penal Code § 210.6 (Prop. Off.
Draft 1962) (providing that, besides aggravating and mitigating
factors, the sentencer "shall take into account . . . any other
facts that it deems relevant"). The Model Penal Code further states
that the court at the sentencing stage
"shall inform the jury of the nature of the sentence of
imprisonment that may be imposed, including its implication with
respect to possible release upon parole, if the jury verdict is
against sentence of death."
Ibid.
Our approval in
Gregg v. Georgia of the wide-ranging
evidence informing the penalty determination in Georgia is equally
appropriate here:
"We think that the Georgia court wisely has chosen not to impose
unnecessary restrictions on the evidence that can be offered at
such a [presentence] hearing, and to approve open and far-ranging
argument. . . . So long as the evidence introduced and the
arguments made at the presentence hearing do not prejudice a
defendant, it is preferable not to impose restrictions. We think it
desirable for the jury to have as much information before it as
possible when it makes the sentencing decision."
428 U.S. at
428 U. S.
203-204.
[
Footnote 24]
Under Art. V, § 8, of the California Constitution and its
implementing statutory sections, Cal.Penal Code Ann. § 4800
et
seq. (West 1982), the Governor possesses broad authority to
reprieve, pardon, or commute sentences, including a death
sentence.
Although the state statute containing the Briggs Instruction
itself requires instruction only on the Governor's power to commute
a sentence of life without possibility of parole, Cal.Penal Code
Ann. § 190.3 (West Supp.1983), the trial judge in this case
preceded this specific instruction with the additional statement
that the Governor "is empowered to grant a reprieve, pardon, or
commutation of
a sentence following conviction of a
crime." Tr. 1189-1190 (emphasis added). This statement is
ambiguous, and might be construed as advising the jury of the
Governor's power to commute a death sentence, as well as a life
sentence. However, at oral argument both the State and respondent
argued that the ambiguity in the quoted sentence should not be
interpreted as advising the jury of the possible commutation of a
death sentence. Tr. of Oral Arg. 10, 18. More significantly, the
State Supreme Court did not interpret the instruction as providing
full disclosure of the extent of the Governor's power of
commutation. In fact, it affirmatively concluded that the "jury is
not informed that a sentence of death may be . . .
commuted or modified." 30 Cal. 3d at 597, 639 P.2d at 933 (emphasis
in original). We defer to the State Supreme Court's finding on this
point.
See, e.g., Wolfe v. North Carolina, 364 U.
S. 177,
364 U. S. 196
(1960);
Lloyd A. Fry Roofing Co. v. Wood, 344 U.
S. 157,
344 U. S. 160
(1952).
[
Footnote 25]
We observe incidentally that respondent at no time requested
that the trial judge also charge the jury regarding the Governor's
power to commute a death sentence.
[
Footnote 26]
Based on its supervisory powers, the Supreme Court of California
held in
Morse that a capital sentencing jury should not be
instructed on either the trial judge's or the Governor's possible
reduction of a death penalty. The court concluded that, by
suggesting that some other authority would review the propriety of
the jury's decision to impose death, the instruction tended to
reduce the jury's sense of responsibility in fixing the penalty. 60
Cal. 2d at 652, 388 P.2d at 46.
[
Footnote 27]
Given our conclusion in
463 U. S.
supra, that the State may constitutionally permit
consideration of the Governor's power to commute a sentence of life
imprisonment without possibility of parole, we do not suggest, of
course, that the Federal Constitution prohibits an instruction
regarding the Governor's power to commute a death sentence.
[
Footnote 28]
The trial judge instructed the jury to
"consider all of the evidence and all of the applicable
instructions on the law which have been received during any part of
the trial of this case"
and to consider "any other circumstances which extenuate the
gravity of the crime even though it is not a legal excuse for the
crime." Tr. 1188-1189.
[
Footnote 29]
JUSTICE MARSHALL's dissent claims that the Briggs Instruction
encourages the jury to impose the death penalty on the basis of an
erroneous assumption that a defendant sentenced to death will not
be released.
Post at
463 U. S.
1016. We emphasize that the instruction is informational
and satisfies the
Jurek requirement that
"[w]hat is essential is that the jury have before it all
possible relevant information about the individual defendant whose
fate it must determine."
428 U.S. at
428 U. S. 276.
In addition, JUSTICE MARSHALL wrongly assumes that the Briggs
Instruction will be the determining factor in the jury's choice of
the appropriate punishment. As we have emphasized
supra at
463 U. S.
1008, the Briggs Instruction "does not advise or
encourage the jury to reach its verdict in reliance upon this
information." 30 Cal. 3d at 603, 639 P.2d at 937 (Richardson, J.,
dissenting). In addition, as stated above, the trial judge's
instructions in this case did not emphasize the role of this factor
in the jury's decision.
[
Footnote 30]
See, e.g., Ga.Code Ann. § 17-8-76 (1982) (prohibiting
argument as to possibility of pardon, parole, or clemency).
Many state courts have held it improper for the jury to consider
or to be informed -- through argument or instruction -- of the
possibility of commutation, pardon, or parole. The basis of
decision in these cases is not always clear --
i.e., it
often does not appear whether the state court's decision is based
on federal constitutional principles. In many instances, however,
the state court's decision appears to rest on an interpretation of
the State's capital sentencing system and the division of
responsibility between the sentencer and other authorities effected
by that scheme.
See, e.g., People v.
Walker, 91 Ill. 2d
502, 515,
440 N.E.2d
83, 89-90 (1982) ("
Our statute requires that the court
or jury, as the case may be, consider aggravating and mitigating
factors, which are relevant to the imposition of the death penalty.
. . . Whether or not the defendant may, at some future time, be
paroled is not a proper aggravating factor to consider in
determining whether the death penalty should be imposed") (emphasis
added);
State v. Lindsey, 404
So. 2d 466, 486 (La.1981) ("Nowhere in the entire sentencing
scheme does the [state code of criminal procedure] provide that the
sentencing jury may consider the offender's future potential for
release should a life sentence be imposed. . . . [G]iving a jury
carte blanche permission to decide the potential factual
consequences of a life sentence allows it to weigh the alternative
not in terms of the clear meaning provided for it
by the
legislature, but in terms of a particular number of years
versus the death penalty, thereby undermining the jury's
responsibility to accept the law as given by the legislature
through the court") (emphasis added);
Poole v. State, 295
Md. 167, 197, 453 A.2d 1218, 1233 (1983) ("[T]his type of argument
is likely to allow the jury to disregard its duty to determine
aggravating and mitigating factors, and to then balance one against
the other
as required by [the state statute.] . . . Any
consideration of the possibility of parole as such simply is
irrelevant . . .") (emphasis added);
State v.
Atkinson, 253 S.C. 531, 535,
172 S.E.2d
111, 112 (1970) ("
The Legislature committed to the jury the
responsibility to determine in the first instance whether
punishment should be life or death. It charged another agency with
the responsibility of deciding how a life sentence shall be
executed'") (quoting State v. White, 27 N.J. 158, 177-178,
142
A.2d 65, 76 (1958)). See also Sukle v. People, 107
Colo. 269, 273, 111 P.2d 233, 235 (1941) (consideration of parole
outside proper scope of jury's duty as fixed by statute); State
v. Jones, 296 N.C. 495, 502-503, 251
S.E.2d 425, 429 (1979).
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, and with whom
JUSTICE BLACKMUN joins as to Parts II, III, IV, and V,
dissenting.
Even if I accepted the prevailing view that the death penalty
may constitutionally be imposed under certain circumstances, I
could not agree that a State may tip the balance in favor of death
by informing the jury that the defendant may eventually be released
if he is not executed. In my view, the Briggs Instruction is
unconstitutional for three reasons. It is misleading. It invites
speculation and guesswork. And it injects into the capital
sentencing process a factor that bears no relation to the nature of
the offense or the character of the offender.
I
I continue to adhere to my view that the death penalty is in all
circumstances cruel and unusual punishment forbidden by the Eighth
and Fourteenth Amendments.
See Gregg v. Georgia,
428 U. S. 153,
428 U. S. 231
(1976) (MARSHALL, J., dissenting);
Furman v. Georgia,
408 U. S. 238,
408 U. S.
358-369 (1972) (MARSHALL, J., concurring). I would
vacate the death sentence on this basis alone. However, even if I
could accept the prevailing view that the death penalty may
constitutionally be imposed under certain circumstances, I would
vacate the death sentence in this case.
II
Apart from the permissibility of ever instructing a jury to
consider the possibility of commutation, the Briggs Instruction is
unconstitutional because it misleads the jury about the scope of
the Governor's clemency power. By upholding that instruction, the
majority authorizes "state-sanctioned fraud and deceit in the most
serious of all state actions: the taking of a human life."
30 Cal. 3d
553, 597, n. 21, 639 P.2d 908, 933, n. 21 (1982).
See
ibid. (if the instruction were "part of a contractual
negotiation, it would arguably constitute a tortious deceit and a
fraudulent misrepresentation").
Page 463 U. S. 1016
The Briggs Instruction may well mislead the jury into believing
that it can eliminate any possibility of commutation by imposing
the death sentence. It indicates that the Governor can commute a
life sentence without possibility of parole, but not that the
Governor can also commute a death sentence. The instruction thus
erroneously suggests to the jury that a death sentence will assure
he defendant's permanent removal from society, whereas the
alternative sentence will not.
See People v.
Haskett, 30 Cal. 3d
841, 861, 640 P.2d 776, 789 (1982).
Presented with this choice, a jury may impose the death sentence
to prevent the Governor from exercising his power to commute a life
sentence without possibility of parole. [
Footnote 2/1]
See Gardner v. Florida,
430 U. S. 349,
430 U. S. 359
(1977) (opinion of STEVENS, J.) ("we must assume that in some cases
[the instruction] will be decisive"). Yet such a sentencing
decision would be based on a grotesque mistake, for the Governor
also has the power to commute a death sentence. The possibility of
this mistake is deliberately injected into the sentencing process
by the Briggs Instruction. In my view, the Constitution simply does
not permit a State to "stac[k] the deck" against a capital
defendant in this manner.
Witherspoon v. Illinois,
391 U. S. 510,
391 U. S. 523
(1968).
See Adams v. Texas, 448 U. S.
38,
448 U. S. 43-44
(1980).
The majority assumes that the issue is whether a "balanced"
instruction would cure the defect.
Ante at
463 U. S.
1011. It then argues that an instruction about the
Governor's power to commute a death sentence would be seriously
prejudicial to the defendant and could not in any event have
been
Page 463 U. S. 1017
given, since it is forbidden by state law.
Ante at
463 U. S.
1011-1012. [
Footnote
2/2] This analysis is based on a fundamental misunderstanding
of the issue. The question is not whether a balanced instruction
would be more or less advantageous to defendants, but whether the
Briggs Instruction is misleading, and therefore
unconstitutional.
If the Briggs Instruction is indeed misleading,
and the
majority never denies that it may lead jurors to impose a death
sentence because they wrongly assume that such a sentence will
ensure that the defendant will not be released, it can hardly
be defended on the ground that a balanced instruction would be more
prejudicial. [
Footnote 2/3] If, as
the majority points out, there are compelling reasons for not
informing the jury as to the Governor's power to commute death
sentences, the solution
Page 463 U. S. 1018
is not to permit a misleading instruction, but to prohibit
altogether any instruction concerning commutation. This point seems
to have eluded the majority. For some inexplicable reason, it
concludes that, since a balanced instruction is unavailable, the
State is free to mislead the jury about the Governor's clemency
power. One searches the majority opinion in vain for some
explanation of how the State's inability to give a complete
statement of the Governor's commutation powers can possibly justify
giving an incomplete statement that is misleading.
I had thought it was common ground that the capital sentencing
process must be as reliable, as rational, and as free of mistakes
as is humanly possible. Yet the Court upholds the Briggs
Instruction without ever disputing its substantial potential to
mislead. The Court thus authorizes the State to "cros[s] the line
of neutrality" and encourage death sentences by deceiving the jury.
Witherspoon, supra, at
391 U. S.
520.
III
The Briggs Instruction should be struck down not only because it
is misleading, but also because it invites the imposition of the
death penalty on the basis of mere speculation. As the majority
concedes,
ante at
463 U. S. 998, n. 8, the Briggs Instruction invites the
jury to consider the possibility that, if it does not sentence the
defendant to death, he may be released through commutation and
subsequent parole. The instruction thus invites the jury to
speculate about the possibility of release, and to decide whether
it wishes to foreclose that possibility by imposing a death
sentence. Respondent contends that a State may not invite a jury to
impose a death sentence on the basis of its
ad hoc
speculation about the likelihood of a release.
Instead of directly confronting this contention, the majority
denies that the principal effect of the Briggs Instruction is to
invite the jury to predict the actions of some future Governor and
parole board. It instead characterizes the Briggs Instruction as a
mere proxy for a determination of future
Page 463 U. S. 1019
dangerousness.
Ante at
463 U. S.
1003,
463 U. S.
1005-1006. It then reasons that, because the Texas
scheme upheld in
Jurek v. Texas, 428 U.
S. 262 (1976), requires the jury to determine a
defendant's future dangerousness,
Jurek is "controlling,"
ante at
463 U. S.
1002, and the Briggs Instruction is therefore
constitutional.
The Briggs Instruction simply cannot be reduced to the
functional equivalent of the scheme upheld in
Jurek. It
neither requires nor even suggests that a jury should make a
finding concerning the defendant's future dangerousness, and the
jury is provided with no evidence on which to base any such
finding. [
Footnote 2/4] More
importantly, whatever else the Briggs Instruction might
incidentally lead juries to consider, the one thing it expressly
invites them to do is to impose the death penalty on the basis of
their
ad hoc speculations as to the likelihood of
commutation.
Individual jury predictions of the possibility of commutation
and parole represent no more than "sheer speculation."
Godfrey
v. Georgia, 446 U. S. 420,
446 U. S. 429
(1980) (plurality opinion). A jury simply has no basis for
assessing the likelihood
Page 463 U. S. 1020
that a particular defendant will eventually be released if he is
not sentenced to death. To invite the jury to indulge in such
speculation is to ask it to foretell numerous imponderables: the
policies that may be adopted by unnamed future Governors and parole
officials, any change in the defendant's character, as well as any
other factors that might be deemed relevant to the commutation and
parole decisions. Yet these are questions that "no human mind can
answer . . . because they rest on future events which are
unpredictable."
People v. Morse, 60 Cal. 2d
631, 643, 388 P.2d 33, 40 (1964). This is inevitable in part
because the commutation decision itself is standardless.
The predictive inquiry becomes even more hazardous if, as the
majority suggests, the jury also considers whether the defendant
would pose a threat to society if and when he is released. A jury,
in short, would have to assess not only the likelihood that the
defendant will be released, but also the likelihood that his
release will be a mistake. I fail to see how any jury can be
expected to forecast the future character of a particular defendant
and the risk that some state authority, armed with contemporaneous
information about his character whose contents the jury can only
guess at, will misjudge his character and erroneously release
him.
Sentencing decisions based on such groundless predictions are
clearly arbitrary and capricious. As the Tennessee Supreme Court
put it, a death sentence imposed on this basis is the product of
"mere guesswork." [
Footnote 2/5] If
the predictions of particular juries reflect little more than wild
speculation, then differences among juries in their predictions are
no less the product of caprice and not reason. Yet the Briggs
Instruction
Page 463 U. S. 1021
creates the possibility that one defendant may be sentenced to
die while another is permitted to live because the first jury
perceived a greater likelihood of commutation and parole. This
hardly constitutes a meaningful, principled basis for
distinguishing a case in which the death penalty is imposed from
one in which it is not.
Gregg v. Georgia, 428 U.S. at
428 U. S. 188,
quoting
Furman v. Georgia, 408 U.S. at
408 U. S. 313
(WHITE, J., concurring).
See also Godfrey v. Georgia,
supra, at
446 U. S. 433;
Lockett v. Ohio, 438 U. S. 586,
438 U. S. 601
(1978) (plurality opinion).
The imposition of death sentences on the basis of sheer
speculation about unknowables can only be arbitrary and capricious.
Our prior cases have stressed the heightened need for reliability
and rationality in the determination of whether an individual
should be sentenced to death.
Woodson v. North Carolina,
428 U. S. 280,
428 U. S. 305
(1976) (plurality opinion);
Lockett v. Ohio, supra, at
438 U. S. 604;
Gardner v. Florida, 430 U.S. at
430 U. S. 359.
The Briggs Instruction injects a level of unreliability,
uncertainty, and arbitrariness "that cannot be tolerated in a
capital case."
Beck v. Alabama, 447 U.
S. 625,
447 U. S. 643
(1980).
IV
Even if the Briggs Instruction did not mislead the jury and call
for guesswork, it would be unconstitutional for the independent
reason that it introduces an impermissible factor into the capital
sentencing process.
The instruction invites juries to impose the death sentence to
eliminate the possibility of eventual release through commutation
and parole. Yet that possibility bears no relation to the
defendant's character or the nature of the crime, or to any
generally accepted justification for the death penalty. Since any
factor considered by the jury may be decisive in its decision to
sentence the defendant to death,
Gardner v. Florida,
supra, at
430 U. S. 359
(opinion of STEVENS, J.), the jury clearly should not be permitted
to consider just any factor. Rather,
Page 463 U. S. 1022
it should only be permitted to consider factors which can
provide a principled basis for imposing a death sentence, rather
than a life sentence.
See Zant v. Stephens, 462 U.
S. 862,
462 U. S. 885
(1983) (noting that jury may not consider race, religion, or
political affiliation, and suggesting that factors which are truly
mitigating cannot be the basis for imposing a death sentence).
In my view, the Constitution forbids the jury to consider any
factor which bears no relation to the defendant's character or the
nature of his crime, or which is unrelated to any penological
objective that can justify imposition of the death penalty. Our
cases establish that a capital sentencing proceeding should focus
on the nature of the criminal act and the character of the
offender.
"[I]n order to minimize the risk that the death penalty would be
imposed on a capriciously selected group of offenders, the decision
to impose it [must] be guided by standards so that the sentencing
authority would focus on the particularized circumstances of the
crime and the defendant."
Gregg v. Georgia, supra, at
428 U. S. 199
(opinion of Stewart, POWELL, and STEVENS, JJ.). The Court has thus
stressed that the appropriateness of the death penalty should
depend on "relevant facets of the character and record of the
individual offender."
Woodson v. North Carolina, supra, at
428 U. S. 304.
Considerations such as the extent of premeditation, the nature of
the crime, and any prior criminal activity have been considered
relevant to the determination of the appropriate sentence. The
requirement that the jury focus on factors such as these is
designed to ensure that the punishment will be "
tailored
to [the defendant's] personal responsibility and moral guilt."
Enmund v. Florida, 458 U. S. 782,
458 U. S. 801
(1982) (emphasis added).
In sharp contrast, the mere possibility of a commutation "is
wholly and utterly foreign to" [
Footnote 2/6] the defendant's guilt, and "not even
remotely related to" [
Footnote 2/7]
his blameworthiness. That possibility
Page 463 U. S. 1023
bears absolutely no relation to the nature of the offense or the
character of the individual. Whether a defendant's crime warrants
the death penalty should not turn on "a speculative possibility
that may or may not occur." [
Footnote
2/8]
The possibility of commutation has no relationship to the state
purposes that this Court has said can justify the death penalty.
Capital punishment simply cannot be justified as necessary to keep
criminals off the streets. Whatever might be said concerning
retribution and deterrence as justifications for capital
punishment, it cannot be seriously defended as necessary to
insulate the public from persons likely to commit crimes in the
future. Life imprisonment and, if necessary, solitary confinement
would fully accomplish the aim of incapacitation.
See Gregg v.
Georgia, supra, at
428 U. S. 236,
n. 14 (MARSHALL, J., dissenting);
Furman v. Georgia,
supra, at
408 U. S.
355-359 (MARSHALL, J., concurring). That the death
penalty cannot be justified by considerations of incapacitation was
implicitly acknowledged in
Gregg, where the joint opinion
of JUSTICES Stewart, POWELL, and STEVENS relied entirely on
retribution and deterrence as possible justifications for the death
penalty, 428 U.S. at
428 U. S. 183,
and mentioned incapacitation only in passing as "[a]nother purpose
that has been discussed."
Id. at
428 U. S. 183,
n. 28. [
Footnote 2/9]
This conclusion is in no way altered by California's decision to
establish an alternative sentence to death that does no
Page 463 U. S. 1024
guarantee permanent confinement. If a death sentence is
inappropriate, a State cannot justify its imposition on the ground
that the alternative it has provided, which in this case leaves
open the possibility of future release, may be considered
inadequate by the jury. An analogy may be usefully drawn to this
Court's decision in
Beck v. Alabama, 447 U.
S. 625 (1980). In
Beck, we struck down an
instruction which created a risk that a defendant would be
convicted of a crime of which he was not guilty. We necessarily
rejected any suggestion that such an instruction could be justified
by the fact that the alternative it presented was no conviction at
all. Presenting the jury in a capital case with the choice between
an unwarranted conviction and an acquittal is impermissible because
it may induce the jury to convict simply to ensure that the
defendant receives some punishment. Such a choice "would seem
inevitably to enhance the risk of an unwarranted conviction."
Id. at
447 U. S. 637.
Similarly, a defendant may not be sentenced to death simply because
the alternative the State has adopted does not ensure
incapacitation. The State may not use the unavailability of
permanent imprisonment to induce juries to sentence to death
defendants whose appropriate punishment is something less severe.
"That death should be inflicted when a life sentence is appropriate
is an abhorrent thought."
State v. White, 27 N.J. 158,
178,
142
A.2d 65, 76 (1958).
Finally, the Briggs Instruction impermissibly invites jurors to
impose death sentences on the basis of their desire to foreclose a
duly authorized review of their judgment of conviction. Although
the power to grant clemency is not restricted by standards, it is
reasonable to assume that it will at least be exercised when the
Governor concludes that "the criminal justice system has unjustly
convicted a defendant."
Roberts v. Louisiana, 428 U.
S. 325,
428 U. S. 350
(1976) (WHITE, J., joined by BURGER, C.J., and BLACKMUN and
REHNQUIST, JJ., dissenting). Yet the very jury whose judgment of
conviction would be the subject of any future application for
Page 463 U. S. 1025
clemency is led to believe that it may impose the death sentence
to preclude such an application. [
Footnote 2/10] I am aware of no authority, and the
majority cites none, for the proposition that a judicial body may
base any decision, no less one concerning the life or death of an
individual, on a desire to immunize its own actions from duly
authorized reexamination. [
Footnote
2/11]
V
The conclusion that juries should not be permitted to consider
commutation and parole in deciding the appropriate sentence is
shared by nearly every jurisdiction which has considered the
question. In prior decisions, this Court has consistently sought
"guidance . . . from the objective evidence of the country's
present judgment" in determining the constitutionality of
particular capital sentencing schemes.
Coker v. Georgia,
433 U. S. 584,
433 U. S. 593
(1977).
See, e.g., Solem v. Helm, ante at
463 U. S.
290-292;
Enmund, 458 U.S. at
458 U. S.
812-816 (O'CONNOR, J., dissenting);
Beck v. Alabama,
supra, at
447 U. S. 637;
Gregg v. Georgia, 428 U.S. at
428 U. S.
179-182;
Woodson v. North Carolina, 428 U.S. at
428 U. S.
294-299. With
Page 463 U. S. 1026
scarcely a word of explanation, today's decision dismisses the
overwhelming weight of authority establishing that a jury may not
be informed of the possibility that a defendant may be released if
he is not sentenced to death.
The propriety of allowing a sentencing jury to consider the
power of a Governor to commute a sentence or of a parole board to
grant parole has been considered in 28 jurisdictions in addition to
California. [
Footnote 2/12] Of
those jurisdictions, 25 have concluded, as did the California
Supreme Court in this case, that the jury should not consider the
possibility of pardon, parole, or commutation. [
Footnote 2/13] In only three jurisdictions has
it
Page 463 U. S. 1027
been deemed proper to allow a jury to consider the possibility
that a sentence can be reduced by commutation or parole, and two of
those cases [
Footnote 2/14] were
decided before
Furman v. Georgia, 408 U.
S. 238 (1972). Only one post-
Furman decision
has approved of jury consideration of parole or commutation,
[
Footnote 2/15] and that decision
concerned a capital sentencing scheme in which the jury merely
recommends the sentence. Moreover, not only has the view embraced
by the majority been almost uniformly rejected, but, in those
States which formerly permitted jury consideration of parole and
commutation, the trend has been to renounce the prior decisions.
[
Footnote 2/16]
I would have thought that this impressive consensus would "weigh
heavily in the balance" in determining the constitutionality of the
Briggs Instruction.
Enmund v. Florida, supra, at
458 U. S. 797.
The majority breezily dismisses that consensus with the terse
statement that "States are free to provide
Page 463 U. S. 1028
greater protections . . . than the Federal Constitution
requires."
Ante at
463 U. S.
1014. This observation hardly suffices as an
explanation, however, since the same thing could have been said in
Enmund, Coker, Beck, and
Woodson, yet in each of
those decisions the Court looked to prevailing standards for
guidance.
The majority's approach is inconsistent with the compelling
reasons for according "due regard,"
Coker v. Georgia, 433
U.S. at
433 U. S. 592,
to the contemporary judgments of other jurisdictions. This Court
has stressed that the "[Eighth] Amendment must draw its meaning
from the evolving standards of decency that mark the progress of a
maturing society,"
Trop v. Dulles, 356 U. S.
86,
356 U. S. 101
(1958) (plurality opinion), and that "[c]entral to the application
of the Amendment is a determination of contemporary standards
regarding the infliction of punishment."
Woodson v. North
Carolina, 428 U.S. at
428 U. S. 288 (opinion of Stewart, POWELL, and STEVENS,
JJ.). Moreover, unless this Court's judgment is "informed by
objective factors to the maximum possible extent," its decisions
may reflect "merely the subjective views of individual Justices."
Coker, supra, at
433 U. S. 592
(plurality opinion).
VI
Whatever interest a State may have in imposing the death
penalty, there is no justification for a misleading instruction
obviously calculated to increase the likelihood of a death sentence
by inviting the jury to speculate about the possibility that the
defendant will eventually be released if he is not executed. I
would vacate respondent's death sentence.
[
Footnote 2/1]
State courts have recognized that juries will compensate for the
possibility of future clemency by imposing harsher sentences.
See, e.g., Farris v. State, 535
S.W.2d 608, 614 (Tenn.1976);
Smith v.
State, 317
A.2d 20, 25-26 (Del.1974);
State v. White, 27 N.J.
158, 177-178,
142
A.2d 65, 76 (1958).
[
Footnote 2/2]
In a footnote the majority notes that the respondent did not
request a jury charge regarding the Governor's power to commute a
death sentence.
Ante at 1011, n. 25. It makes nothing of
this fact, however, for reasons that are plain: the California
Supreme Court did not find that respondent had waived any objection
to the misleading nature of the Briggs Instruction, and, in any
event, such an instruction was forbidden by State law.
[
Footnote 2/3]
For some of the reasons articulated by the majority,
ante at
463 U. S.
1011, the Constitution would presumably forbid
instructing a jury in a capital sentencing proceeding to consider
the Governor's powers to commute a death sentence.
See
generally Farris v. State, supra, at 614 (noting that such an
instruction "tends to breed irresponsibility on the part of jurors
premised upon the proposition that corrective action can be taken
by others at a later date");
State v. Jones, 296 N.C. 495,
501,
251
S.E.2d 425, 429 (1979) (jury's sense of responsibility will be
reduced by reliance on executive review). The majority suggests
that a defendant is free to correct the misleading impression
created by the Briggs Instruction by informing jurors about the
Governor's power to commute death sentences.
Ante at
463 U. S.
1004-1005, n.19. This suggestion is anomalous indeed,
since the majority itself has concluded that jurors so informed
will be inclined
"to approach their sentencing decision with less appreciation
for the gravity of their choice and for the moral responsibility
reposed in them as sentencers."
Ante at
463 U. S.
1011. I cannot agree that a State may force a defendant
to choose between being sentenced by a jury which is misinformed
and one which is unlikely to view its task with the requisite sense
of responsibility.
[
Footnote 2/4]
The Briggs Instruction merely invites the jury to speculate
about the likelihood of future release; it says nothing about
whether there is a likelihood of future criminal activity in the
event of such release. A jury may decide to impose the death
penalty to prevent a defendant's release simply because it has
concluded that the defendant does not "deserve" to reenter society,
and not because of any concern about his dangerousness.
Jurek says nothing about the permissibility of imposing a
death sentence on this basis.
In addition, although a jury presented with the Briggs
Instruction might choose to take into account future dangerousness,
this in no way makes the instruction the functional equivalent of
the Texas scheme. In upholding the Texas scheme, this Court
stressed that the Texas law assured that "all possible relevant
information" is presented to the jury. 428 U.S. at
428 U. S. 276.
Under the Briggs Instruction, not only is the jury not required to
make any finding concerning the defendant's future dangerousness,
but also there is no requirement that any evidence of future
dangerousness be introduced. Indeed, with rare exceptions such
evidence is inadmissible under California law.
See People v.
Murtishaw, 29 Cal. 3d
733, 767-775, 631 P.2d 446, 468-471 (1981),
cert.
denied, 455 U.S. 922 (1982).
[
Footnote 2/5]
Farris v. State, 535 S.W.2d at 613-614, quoting
Graham v. State, 304
S.W.2d 622, 624 (1957).
Accord, State v.
Leland, 190 Ore. 598, 623,
227 P.2d
785, 796 (1951) ("purely speculative");
Jones v.
Commonwealth, 194 Va. 273, 279, 72 S.E.2d 693, 697 (1952)
(results in punishment based on "speculative elements");
State
v. Lindsey, 404 So. 2d
466, 487 (La.1981) ("unquantifiable factor").
[
Footnote 2/6]
Farris v. State, supra, at 614.
[
Footnote 2/7]
State v. Lindsey, supra, at 486.
[
Footnote 2/8]
People v. Walker, 91 Ill. 2d
502, 515,
440 N.E.2d
83, 89 (1982).
[
Footnote 2/9]
Jurek v. Texas, 428 U. S. 262
(1976), does not establish that the goal of incapacitation may
justify the death penalty. This question was not addressed in
Jurek. The petitioner in
Jurek did not attack the
Texas capital sentencing scheme on this ground, but rather
contended that the scheme would not prevent the arbitrary and
capricious infliction of the death penalty. The Court rejected this
attack on the
procedures prescribed by the Texas scheme,
id. at
428 U. S.
268-276 (opinion of Stewart, POWELL, and STEVENS, JJ.);
id. at
428 U. S.
278-279 (WHITE, J., joined by BURGER, C.J., and
REHNQUIST, J., concurring in judgment), but did not decide the
substantive question of whether a prediction of future
dangerousness is a proper criterion for determining whether a
defendant is to live or die.
[
Footnote 2/10]
It matters not that the jury in California cannot actually
eliminate the possibility of commutation because a death sentence
may be commuted as well. The Briggs Instruction omits any mention
of this fact, and, as the majority acknowledges,
ante at
463 U. S.
1011-1012, there exist compelling reasons why a
defendant would not wish to and should not be forced to bring it to
the jury's attention.
See 463
U.S. 992fn2/3|>n. 3,
supra.
[
Footnote 2/11]
State courts have consistently held that juries may not be
permitted to circumvent the actions of other branches of government
through the preemptive imposition of the death penalty.
See,
e.g., Murray v. State, 359
So. 2d 1178 (Ala.Crim.App.1978) (consideration of commutation
subverts jury's properly assigned role);
Andrews v. State,
251 Ark. 279, 290,
472 S.W.2d 86,
92 (1971)
(consideration of commutation takes jury "far afield from its
proper purpose and prerogative");
Broules v.
Commonwealth, 267
S.W.2d 73, 76 (Ky.1954) (when jury anticipates acts of
executive branch, it "circumvent[s] . . . and infringes upon
[their] prerogatives");
State v. Lindsey, 404 So. 2d at
486-487 (jury would improperly preempt the Governor's duly
authorized power);
Jones v. Commonwealth, 194 Va. 273,
279, 72 S.E.2d 693, 697 (1952).
[
Footnote 2/12]
California is the only State which has a statute requiring that
the jury be instructed to consider the possibility of commutation.
In other jurisdictions, the issue has generally arisen either
because the jury inquired about parole or commutation or because
the defendant contended that the prosecution improperly argued the
issue to the jury.
[
Footnote 2/13]
Most of these decisions concern jury sentencing in capital
cases, although some concern noncapital cases. While some decisions
have found the error harmless, in none of these cases did a court
find a jury instruction concerning parole or commutation to be
harmless.
See, e.g., Grady v. State, 391
So. 2d 1095 (Ala.Crim.App.1980) (noncapital);
Westbrook v.
State, 265 Ark. 736,
580 S.W.2d
702 (1979);
Jones v. State, 146 Colo. 40,
360 P.2d 686
(1961);
Smith v. State, 317 A.2d
20 (Del.1974);
Paramore v. State, 229 So. 2d 855
(Fla.1969) (prosecutor argument improper but not reversible error),
vacated on other grounds, 408 U.S. 935 (1972);
Gilreath v. State, 247 Ga. 814,
279 S.E.2d
650 (1981),
cert. denied, 456 U.S. 984 (1982);
People v. Szabo, 94 Ill. 2d
327,
447 N.E.2d
193 (1983);
Farmer v. Commonwealth, 450
S.W.2d 494 (Ky.1970);
State v. Brown, 414 So. 2d
689 (La.1982);
Poole v. State, 295 Md. 167, 453 A.2d
1218 (1983);
State v. Thomas, 625 S.W.2d
115 (Mo.1981);
Grandsinger v. State, 161 Neb. 419,
73 N.W.2d 632
(1955) (prosecutorial argument improper but not reversible error),
cert. denied, 352 U.S. 880 (1956);
Summers v.
State, 86 Nev. 210, 213,
467 P.2d 98,
100 (1970)
(reaffirming
Serrano v. State, 86 Nev. 676,
447 P.2d 497
(1968), which instructed jury to assume that life without parole
means exactly that);
State v. Conklin, 54 N.J. 540,
258 A.2d
1 (1969);
State v. Jones, 296 N.C. 495,
251 S.E.2d
425 (1979);
McKee v. State, 576 P.2d
302 (Okla. Crim. App.1978) (noncapital);
State v.
Leland, 190 Ore. 598,
227 P.2d
785 (1951),
aff'd, 343 U. S. 790
(1952);
Commonwealth v. Aljoe, 420 Pa.198, 216 A.2d 50
(1966);
State v. Goolsby, 275 S.C. 110,
268 S.E.2d
31,
cert. denied, 449 U.S. 1037 (1980);
Farris v.
State, 535
S.W.2d 608 (Tenn.1976) (noncapital);
Clanton v.
State, 528
S.W.2d 250 (Tex.Crim.App.1975);
Clanton v.
Commonwealth, 223 Va. 41,
286 S.E.2d
172 (1982);
State v. Todd, 78 Wash. 2d
362,
474 P.2d
542 (1970);
State v. Lindsey, 160 W.Va. 284,
233 S.E.2d
734 (1977) (noncapital);
State v. Carroll, 52 Wyo. 29,
69 P.2d 542
(1937). Contrary to the majority's suggestion,
ante at
463 U. S.
1013-1014, n. 30, these decisions rest on much broader
grounds than the interpretation of particular state statutes.
[
Footnote 2/14]
Massa v. State, 37 Ohio App. 532, 538-539, 175 N.E.
219, 221-222 (1930);
State v. Jackson, 100 Ariz. 91,
412 P.2d
36 (1966).
[
Footnote 2/15]
Brewer v. State, 275 Ind. 338,
417
N.E.2d 889 (1981).
[
Footnote 2/16]
In 1955, for instance, the Georgia Legislature overruled prior
decisions to the contrary by enacting a statute forbidding any jury
argument concerning commutation or parole. Ga.Code Ann. 27-2206
(1972).
See Strickland v. State, 209 Ga. 65,
70 S.E.2d 710
(1952) (cases discussed therein). In 1958, the New Jersey Supreme
Court reversed a line of decisions which had approved of jury
consideration of commutation and parole.
State v. White,
27 N.J. 158,
142 A.2d
65 (1958). And in 1976, the Tennessee Supreme Court invalidated
a statute that required juries to be instructed about parole in
felony cases.
Farris v. State, supra. See also Andrews
v. State, 251 Ark. 279,
472 S.W.2d 86
(1971) (disapproving earlier decisions permitting judge, when asked
by jurors, to inform them of possibility of reduction of
sentence).
JUSTICE BLACKMUN, dissenting.
I join Parts II through V of JUSTICE MARSHALL's opinion in
dissent.
I had understood the issue in this case to be whether a State
constitutionally may instruct a jury about the Governor's power to
commute a sentence of life without parole. That issue involves jury
consideration of the probability of
Page 463 U. S. 1029
action by the incumbent Governor or by future Governors.
Instead, the Court, on its own, redefines the issue in terms of the
dangerousness of the respondent, an issue that involves jury
consideration of the probability that respondent will commit acts
of violence in the future.
Ante at
463 U. S.
1002-1003. As both JUSTICE MARSHALL,
ante at
463 U. S.
1018-1019, and JUSTICE STEVENS,
post at
463 U. S.
1030, so forcefully point out, the two questions do not
relate to each other. Neither the State of California nor the
solitary dissenter in the State's Supreme Court ventured such an
argument.
The issue actually presented is an important one, and there may
be arguments supportive of the instruction. The Court, however,
chooses to present none. Instead, it approves the Briggs
Instruction by substituting an intellectual sleight of hand for
legal analysis. This kind of appellate review compounds the
original unfairness of the instruction itself, and thereby does the
rule of law disservice. I dissent.
JUSTICE STEVENS, dissenting.
No rule of law required the Court to hear this case. We granted
certiorari only because at least four Members of the Court
determined -- as a matter of discretion -- that review of the
constitutionality of the so-called Briggs Instruction would
represent a wise use of the Court's scarce resources.
When certiorari was granted in this case, the Court had been
informed by the respondent that the Briggs Instruction is unique:
"Only California requires that juries be instructed selectively on
the Governor's power to commute life without parole sentences."
Further, the Court had been informed, accurately, that the
overwhelming number of jurisdictions condemn any comment whatsoever
in a capital case on the Governor's power to commute. That
statement was followed by a half-page list of citations to state
court decisions. Brief in Opposition 6-7.
See ante at
463 U. S.
1026-1027 (JUSTICE MARSHALL, dissenting). These facts
shed an illuminating light on the Court's perception of how its
discretion should be exercised.
Page 463 U. S. 1030
Even if one were to agree with the Court's conclusion that the
instruction does not violate the defendant's procedural rights, it
would nevertheless be fair to ask what harm would have been done to
the administration of justice by state courts if the California
court had been left undisturbed in its determination. It is clear
that omission of the instruction could not conceivably prejudice
the prosecutor's legitimate interests. Surely if the character of
an offense and the character of the offender are such that death is
the proper penalty, the omission of a comment on the Governor's
power to commute a life sentence would not preclude the jury from
returning the proper verdict. If it were true that this instruction
may make the difference between life and death in a case in which
the scales are otherwise evenly balanced, that is a reason why the
instruction should not be given -- not a reason for giving it. For
the existence of the rarely exercised power of commutation has
absolutely nothing to do with the defendant's culpability or his
capacity for rehabilitation. The Governor's power to commute is
entirely different from any relevant aggravating circumstance that
may legitimately impel the jury toward voting for the death
penalty.
See ante at
463 U. S.
1012. The Briggs Instruction has no greater
justification than an instruction to the jury that, if the scales
are evenly balanced, you should remember that more murders have
been committed by people whose names begin with the initial "S"
than with any other letter.
No matter how trivial the impact of the instruction may be, it
is fundamentally wrong for the presiding judge at the trial -- who
should personify the evenhanded administration of justice -- to
tell the jury, indirectly to be sure, that doubt concerning the
proper penalty should be resolved in favor of the most certain
method of preventing the defendant from ever walking the streets
again.
The Court concludes its opinion by solemnly noting that we "sit
as judges, not as legislators, and the wisdom of the decision to
permit juror consideration of possible commutation is
Page 463 U. S. 1031
best left to the States."
Ante at
463 U. S.
1014. Why, I ask with all due respect, did not the
Justices who voted to grant certiorari in this case allow the
wisdom of state judges to prevail in California, especially when
they have taken a position consistent with those of state judges in
Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois,
Kentucky, Louisiana, Maryland, Missouri, Nebraska, Nevada, New
Jersey, North Carolina, Oklahoma, Oregon, Pennsylvania, South
Carolina, Tennessee, Texas, Virginia, Washington, West Virginia,
and Wyoming?
I repeat, no rule of law commanded the Court to grant
certiorari. No other State would have been required to follow the
California precedent if it had been permitted to stand. Nothing
more than an interest in facilitating the imposition of the death
penalty in California justified this Court's exercise of its
discretion to review the judgment of the California Supreme Court.
That interest, in my opinion, is not sufficient to warrant this
Court's review of the validity of a jury instruction when the
wisdom of giving that instruction is plainly a matter that is best
left to the States.
For the reasons stated in Parts II to V of JUSTICE MARSHALL's
opinion, I disagree with the Court's decision on the merits. But
even if the Court were correct on the merits, I would still firmly
disagree with its decision to grant certiorari. I therefore
respectfully dissent.