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Louise
HARRIS
Supreme Court of the United States
Louise HARRIS, Petitioner, v.
ALABAMA.
On Writ of Certiorari to the
Supreme Court of Alabama
Alabama law vests capital
sentencing authority in the trial judge, but requires the judge to
"consider" an advisory jury verdict. After convicting petitioner
Harris of capital murder, the jury recommended that she be imprisoned
for life without parole, but the trial judge sentenced her to death
upon concluding that the statutory aggravating circumstance found and
considered outweighed all of the mitigating circumstances. The Alabama
Court of Criminal Appeals affirmed the conviction and sentence,
rejecting Harris' argument that the capital sentencing statute is
unconstitutional because it does not specify the weight the judge must
give to the jury's recommendation and thus permits the arbitrary
imposition of the death penalty. The Alabama Supreme Court affirmed.
Held: The Eighth Amendment does
not require the State to define the weight the sentencing judge must
give to an advisory jury verdict. Pp. __.
(a) Because the Constitution
permits the trial judge, acting alone, to impose a capital sentence,
see, e.g., Spaziano v. Florida, 468 U.S. 447, 465, 104 S.Ct. 3154,
3165, 82 L.Ed.2d 340, it is not offended when a State further requires
the judge to consider a jury recommendation and trusts the judge to
give it the proper weight. Alabama's capital sentencing scheme is much
like Florida's, except that a Florida sentencing judge is required to
give the jury's recommendations "great weight," see Tedder v. State,
322 So.2d 908, 910 (Fla.), while an Alabama judge is not. Although
this Court has spoken favorably of the so-called Tedder standard, see,
e.g., Spaziano, supra, at 465, 104 S.Ct., at 3165, it has also made
clear that the hallmark of the analysis is not the particular weight a
State chooses to place upon the jury's advice, but whether the scheme
adequately channels the sentencer's discretion so as to prevent
arbitrary results, see, e.g., ibid. To impose the Tedder standard here
would offend established principles governing the criteria to be
considered by the sentencer, see, e.g., Franklin v. Lynaugh, 487 U.S.
164, 179, 108 S.Ct. 2320, 2330, 101 L.Ed.2d 155 and would place within
constitutional ambit micromanagement tasks that properly rest within
the State's discretion to administer its criminal justice system. Pp.
__.
(b) Harris' arguments for
requiring that "great weight" be given to the jury's advice are
unpersuasive. First, Alabama cases reversing death sentences for
prejudicial errors committed before the advisory jury do not
demonstrate that the jury's role is in fact determinative, but simply
that a sentence imposed by the judge is invalid if the recommendation
on which it partially rests was rendered erroneously. Second, although
statistics demonstrate that there have been only 5 cases in which an
Alabama judge rejected an advisory verdict of death, compared to 47
instances where the judge imposed a death sentence over a jury
recommendation of life, these numbers do not tell the whole story
because they do not indicate, for example, how many cases in which a
jury recommendation of life was adopted would have ended differently
had the judge not been required to consider the jury's advice.
Moreover, the statistics say little about whether the Alabama scheme
is constitutional, a question which turns not solely on numerical
tabulations of sentences, but rather on whether the penalties imposed
are the product of properly guided discretion and not of arbitrary
whim. Finally, apparent disparities in the weight given to jury
verdicts in specific Alabama cases do not indicate that the judges
have divergent understandings of the statutory requirement that such
verdicts be considered; they simply reflect the fact that, in the
subjective weighing process, the emphasis given to each decisional
criterion must of necessity vary to account for the particular
circumstances in each case. In any event, Harris does not show how
these disparities affect her case. Pp. __.
632 So.2d 543 (Ala.1993),
affirmed.
O'CONNOR, J., delivered the
opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY,
SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed
a dissenting opinion.
Ruth Friedman, Montgomery, AL,
for petitioner.
P. David Bjurberg, Montgomery,
AL, for respondent.
*****
Justice O'CONNOR delivered the
opinion of the Court.
Alabama law vests capital
sentencing authority in the trial judge, but requires the judge to
consider an advisory jury verdict. We granted certiorari to consider
petitioner's argument that Alabama's capital sentencing statute is
unconstitutional because it does not specify the weight the judge must
give to the jury's recommendation and thus permits arbitrary
imposition of the death penalty.
* A defendant convicted of
capital murder in Alabama is entitled to a sentencing hearing before
the trial jury, Ala.Code § 13A-5-46 (1994), unless jury participation
is waived by both parties and approved by the court, § 13A-5-44. The
State must prove statutory aggravating factors beyond a reasonable
doubt and must disprove, by a preponderance of the evidence, any
mitigating circumstance the defendant may proffer. § 13A-5-45(g). The
jury then renders an advisory verdict. If it finds that aggravating
factors, if any, outweigh mitigating circumstances, then the jury
recommends death; otherwise, the verdict is life imprisonment without
parole. § 13A-5-46(e). The jury may recommend death only if 10 jurors
so agree, while a verdict of life imprisonment requires a simple
majority. § 13A-5-46(f). The recommendation and vote tally are
reported to the judge.
The judge then must consider all
available evidence and file a written statement detailing the
defendant's crime, listing specific aggravating and mitigating
factors, and imposing a sentence. Alabama Code § 13A-5-47(e) provides:
"In deciding upon the sentence,
the trial court shall determine whether the aggravating circumstances
it finds to exist outweigh the mitigating circumstances it finds to
exist, and in doing so the trial court shall consider the
recommendation of the jury contained in its advisory verdict, unless
such verdict has been waived pursuant to Section 13A-5-46(a) or
13A-5-46(g). While the jury's recommendation concerning sentence shall
be given consideration, it is not binding upon the court."
If the defendant is sentenced to
death, his conviction and sentence are automatically reviewed by an
appellate court and, if affirmed, a writ of certiorari is granted by
the Alabama Supreme Court as a matter of right. In addition to
reviewing the record for errors, the appellate courts must
independently weigh aggravating and mitigating circumstances and
determine whether the death penalty is disproportionate to sentences
rendered in comparable cases. § 13A-5-53(b).
Petitioner Louise Harris was
married to the victim, a deputy sheriff, and was also having an affair
with Lorenzo McCarter. She asked McCarter to find someone to kill her
husband, and McCarter to that end approached a co-worker, who refused
and reported the solicitation to his supervisor. McCarter then found
willing accomplices in Michael Sockwell and Alex Hood, who were paid
$100 and given a vague promise of more money upon performance. On the
appointed night, as her husband left for work on the nightshift,
Harris called McCarter on his beeper to alert him. McCarter and Hood
sat in a car parked on a nearby street, and Sockwell hid in the bushes
next to a stop sign. As the victim stopped his car at the
intersection, Sockwell sprang forth and shot him, point blank, with a
shotgun. Harris was arrested after questioning, and McCarter agreed to
bear witness to the conspiracy in exchange for the prosecutor's
promise not to seek the death penalty. McCarter testified that Harris
had asked him to kill her husband so they could share in his death
benefits, which totaled about $250,000.
The jury convicted Harris of
capital murder. At the sentencing hearing, a number of witnesses
attested to her good background and strong character. She was rearing
seven children, held three jobs simultaneously, and participated
actively in her church. The jury recommended, by a 7 to 5 vote, that
she be imprisoned for life without parole. The trial judge then
considered her sentence, finding the existence of one aggravating
circumstance, that the murder was committed for pecuniary gain, and
one statutory mitigator, that Harris had no prior criminal record. The
trial judge also found as nonstatutory mitigating circumstances that
Harris was a hardworking, respected member of her church and
community. Noting that Harris had planned the crime and financed its
commission and stood to benefit the most from her husband's murder,
the judge concluded that "the one statutory aggravating circumstance
found and considered far outweighs all of the non-statutory mitigating
circumstances, and that the sentence ought to be death." App. 7. In
separate proceedings, all the conspirators were convicted of capital
murder. McCarter and Hood received prison terms of life without
parole; Sockwell, the triggerman, was sentenced to death after the
trial judge rejected a jury recommendation, again by a 7 to 5 vote, of
life imprisonment.
The Alabama Court of Criminal
Appeals affirmed Harris' conviction and sentence. 632 So.2d 503
(1992). It noted that Alabama's death penalty statute is based on
Florida's sentencing scheme, which we have held to be constitutional,
see Spaziano v. Florida, 468 U.S. 447, 457-467, 104 S.Ct. 3154,
3160-3166, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242,
252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.). One difference is that jury
recommendations are to be given "great weight" by the sentencing judge
in Florida, see Tedder v. State, 322 So.2d 908, 910 (Fla.1975),
whereas Alabama only requires the judge to "consider" the advisory
verdict. The Court of Criminal Appeals rejected Harris's contention
that Florida's so-called Tedder standard is constitutionally required,
however. 632 So.2d, at 538. As the statute prescribes, the court then
reviewed the record for prejudicial errors and independently weighed
the aggravating and mitigating circumstances. Finding no errors and
concluding that death was the proper sentence, the court affirmed.
Id., at 542-543. The Alabama Supreme Court also affirmed, discussing
an unrelated claim. 632 So.2d 543 (1993). We granted certiorari. 512
U.S. ----, 114 S.Ct. 2736, 129 L.Ed.2d 858 (1994).
II
Alabama's capital sentencing
scheme is much like that of Florida. Both require jury participation
in the sentencing process but give ultimate sentencing authority to
the trial judge. Ala.Code § 13A-5-47(e) (1994); Fla.Stat. § 921.141(3)
(1985). A sentence of death in both States is subject to automatic
appellate review. Ala.Code § 13A-5-55 (1994); Fla.Stat. § 921.141(4)
(1985). In Florida, as in Alabama, the reviewing courts must
independently weigh aggravating and mitigating circumstances to
determine the propriety of the death sentence, Ala.Code §
13A-5-53(b)(2) (1994); Harvard v. State, 375 So.2d 833 (Fla.1977),
cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), and
must decide whether the penalty is excessive or disproportionate
compared to similar cases, Ala.Code § 13A-5-53(b)(3) (1994); Williams
v. State, 437 So.2d 133 (Fla.1983), cert. denied, 466 U.S. 909, 104
S.Ct. 1690, 80 L.Ed.2d 164 (1984).
The two States differ in one
important respect. The Florida Supreme Court has opined that the trial
judge must give "great weight" to the jury's recommendation and may
not override the advisory verdict of life unless "the facts suggesting
a sentence of death are so clear and convincing that virtually no
reasonable person could differ." Tedder v. State, 322 So.2d, at 910.
The same deference inures to a jury recommendation of death. See
Grossman v. State, 525 So.2d 833, 839, n. 1 (Fla.1988) (collecting
cases). The Alabama capital sentencing statute, by contrast, requires
only that the judge "consider" the jury's recommendation, and Alabama
courts have refused to read the Tedder standard into the statute. See
Ex Parte Jones, 456 So.2d 380, 382-383 (Ala.1984). This distinction
between the Alabama and Florida schemes forms the controversy in this
case—whether the Eighth Amendment to the Constitution requires the
sentencing judge to ascribe any particular weight to the verdict of an
advisory jury.
We have held Florida's capital
sentencing statute to be constitutional. See Proffitt v. Florida, 428
U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Spaziano v. Florida,
468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). In Spaziano, we
addressed the specific question whether Florida could, consistent with
the Constitution, vest sentencing authority in the judge and relegate
the jury to an advisory role. While acknowledging that sentencing
power resides with the jury in most States, we made clear that the
"Eighth Amendment is not violated every time a State reaches a
conclusion different from a majority of its sisters over how best to
administer its criminal laws." Id., at 464, 104 S.Ct., at 3164. We
therefore rejected the contention that "placing the responsibility on
a trial judge to impose the sentence in a capital case is so
fundamentally at odds with contemporary standards of fairness and
decency that Florida must be required to alter its scheme and give
final authority to the jury to make the life-or-death decision." Id.,
at 465, 104 S.Ct., at 3165; see also Walton v. Arizona, 497 U.S. 639,
648, 110 S.Ct. 3047, 3054, 111 L.Ed.2d 511 (1990); Clemons v.
Mississippi, 494 U.S. 738, 745, 110 S.Ct. 1441, 1446, 108 L.Ed.2d 725
(1990).
Asserting that the death penalty
serves no function in "rehabilitation," "incapacitation," or
"deterrence," Justice STEVENS argues that a jury "should bear the
responsibility to express the conscience of the community on the
ultimate question of life or death in particular cases." Post, at __,
__ (internal quotations omitted). What purpose is served by capital
punishment and how a State should implement its capital punishment
scheme—to the extent that those questions involve only policy
issues—are matters over which we, as judges, have no jurisdiction. Our
power of judicial review legitimately extends only to determine
whether the policy choices of the community, expressed through its
legislative enactments, comport with the Constitution. As we have
noted elsewhere, "while we have an obligation to insure that
constitutional bounds are not overreached, we may not act as judges as
we might as legislators." Gregg v. Georgia, 428 U.S. 153, 174-175, 96
S.Ct. 2909, 2925-2926, 49 L.Ed.2d 859 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.)
In various opinions on the
Florida statute we have spoken favorably of the deference that a judge
must accord the jury verdict under Florida law. While rejecting an ex
post facto challenge in Dobbert v. Florida, 432 U.S. 282, 294, 97
S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), we noted the "crucial
protection" provided by the standard of Tedder v. State, 322 So.2d, at
910. In the same fashion, in dismissing Spaziano's argument that the
Tedder standard was wrongly applied by the lower courts in his case,
we stated:
"This Court already has
recognized the significant safeguard the Tedder standard affords a
capital defendant in Florida. See Dobbert v. Florida, 432 U.S. 282,
294-295, 97 S.Ct. 2290, 2298-2299, 53 L.Ed.2d 344 (1977). See also
Proffitt, 428 U.S., at 249, 96 S.Ct., at 2965 (joint opinion). We are
satisfied that the Florida Supreme Court takes that standard seriously
and has not hesitated to reverse a trial court if it derogates the
jury's role." Spaziano, 468 U.S., at 465, 104 S.Ct., at 3165.
These statements of approbation,
however, do not mean that the Tedder standard is constitutionally
required. As we stated in Spaziano immediately following the passage
quoted above, "Our responsibility, however, is not to second-guess the
deference accorded the jury's recommendation in a particular case, but
to ensure that the result of the process is not arbitrary or
discriminatory." 468 U.S., at 465, 104 S.Ct., at 3165. We thus made
clear that, our praise for Tedder notwithstanding, the hallmark of the
analysis is not the particular weight a State chooses to place upon
the jury's advice, but whether the scheme adequately channels the
sentencer's discretion so as to prevent arbitrary results. See also
Proffitt, 428 U.S., at 252-253, 96 S.Ct., at 2966-2967 (joint opinion
of Stewart, Powell, and STEVENS, JJ.).
Consistent with established
constitutional law, Alabama has chosen to guide the sentencing
decision by requiring the jury and judge to weigh aggravating and
mitigating circumstances. Harris does not challenge this legislative
choice. And she objects to neither the vesting of sentencing authority
in the judge nor the requirement that the advisory verdict be
considered in the process. What she seeks instead is a constitutional
mandate as to how that verdict should be considered; relying on
Florida's standard, she suggests that the judge must give "great
weight" to the jury's advice.
We have rejected the notion that
"a specific method for balancing mitigating and aggravating factors in
a capital sentencing proceeding is constitutionally required."
Franklin v. Lynaugh, 487 U.S. 164, 179, 108 S.Ct. 2320, 2330, 101
L.Ed.2d 155 (1988). Equally settled is the corollary that the
Constitution does not require a State to ascribe any specific weight
to particular factors, either in aggravation or mitigation, to be
considered by the sentencer. See, e.g., Blystone v. Pennsylvania, 494
U.S. 299, 306-307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990);
Eddings v. Oklahoma, 455 U.S. 104, 113-115, 102 S.Ct. 869, 876-877, 71
L.Ed.2d 1 (1982); Proffitt, 428 U.S., at 257-258, 96 S.Ct., at 2969
(joint opinion of Stewart, Powell, and STEVENS, JJ.). To require that
"great weight" be given to the jury recommendation here, one of the
criteria to be considered by the sentencer, would offend these
established principles and place within constitutional ambit
micromanagement tasks that properly rest within the State's discretion
to administer its criminal justice system. We therefore hold that the
Eighth Amendment does not require the State to define the weight the
sentencing judge must accord to an advisory jury verdict.
Harris argues that, under
Alabama law, the verdict is more than advisory and that the jury in
fact enjoys the key sentencing role, subject only to review by the
judge. For support, she points to Alabama cases reversing death
sentences where prejudicial errors were committed before the advisory
jury. See Ex parte Williams, 556 So.2d 744, 745 (Ala.1987). Unless the
jury played a key role, so goes the argument, reversal would not be
warranted because the sentencing judge was not exposed to the same
harmful error. The flaw in this contention is that reversal is proper
so long as the jury recommendation plays a role in the judge's
decision, not necessarily a determinative one. If the judge must
consider the jury verdict in sentencing a capital defendant, as the
statute plainly requires, then it follows that a sentence is invalid
if the recommendation upon which it partially rests was rendered
erroneously. In Espinosa v. Florida, 505 U.S. ----, 112 S.Ct. 2926,
120 L.Ed.2d 854 (1992), the advisory jury, but not the sentencing
judge, was presented with an invalid aggravating factor. We summarily
reversed the death sentence, explaining that "Florida has essentially
split the weighing process in two. Initially, the jury weighs
aggravating and mitigating circumstances, and the result of that
weighing process is then in turn weighed within the trial court's
process of weighing aggravating and mitigating circumstances." Id., at
----, 112 S.Ct., at 2928. Error is committed when the jury considers
an invalid factor and its verdict is in turn considered by the judge:
"This kind of indirect weighing of an invalid aggravating factor
creates the same potential for arbitrariness as the direct weighing of
an invalid aggravating factor, and the result, therefore, was error."
Ibid. (citation omitted). Such consequential error attaches whenever
the jury recommendation is considered in the process, not only when it
is given great weight by the judge.
We have observed in the Florida
context that permitting the trial judge to reject the jury's advisory
verdict may afford capital defendants "a second chance for life with
the trial judge," Dobbert, 432 U.S., at 296, 97 S.Ct., at 2299. In
practice, however, Alabama's sentencing scheme has yielded some
ostensibly surprising statistics. According to the Alabama Prison
Project, there have been only 5 cases in which the judge rejected an
advisory verdict of death, compared to 47 instances where the judge
imposed a death sentence over a jury recommendation of life.
Statistics compiled by the Alabama Prison Project (Nov. 29, 1994)
(lodged with the Clerk of this Court). But these numbers do not tell
the whole story. We do not know, for instance, how many cases in which
a jury recommendation of life imprisonment is adopted would have ended
differently had the judge not been required to consider the jury's
advice. Without such a subjective look into the minds of the
decisionmakers, the deceptively objective numbers afford at best an
incomplete picture. Even assuming that these statistics reflect a true
view of capital sentencing in Alabama, they say little about whether
the scheme is constitutional. That question turns not solely on a
numerical tabulation of actual death sentences as compared to a
hypothetical alternative, but rather on whether the penalties imposed
are the product of properly guided discretion and not of arbitrary
whim. If the Alabama statute indeed has not had the effect that we or
its drafters had anticipated, such unintended results would be of
little constitutional consequence. An ineffectual law is for the State
legislature to amend, not for us to annul.
Harris draws our attention to
apparent disparities in the weight given to jury verdicts in different
cases in Alabama. For example, the trial judge here did not specify
his reason for rejecting the jury's advice but in another case wrote
that he accorded "great weight" to the recommendation, State v. Coral,
No. CC-88-741 (Montgomery Cty., June 26, 1992), Alabama Sentencing
Orders, p. 72 (lodged with the Clerk of this Court). In rejecting the
jury verdict, other judges have commented variously that there was a
"reasonable basis" to do so, State v. Parker, No. CC-88-105 (Colbert
Cty., Dec. 3, 1991) Alabama Sentencing Orders, p. 408, that the
verdict was "unquestionably a bizarre result," Ex parte Hays, 518
So.2d 768, 777 (Ala.1986), or that "if this were not a proper case for
the death penalty to be imposed, a proper case could scarcely be
imagined," State v. Frazier, No. CC-85-3291 (Mobile Cty., July 31,
1990) Alabama Sentencing Orders, p. 139. Juxtaposing these statements,
Harris argues that the Alabama statute permits judges to reject
arbitrarily the advisory verdict, thereby abusing their sentencing
discretion.
But these statements do not
indicate that the judges have divergent understandings of the
statutory requirement that the jury verdicts be considered; they
simply illustrate how different judges have "considered" the jury's
advice. There is no reason to expect that the advisory verdicts will
be treated uniformly in every case. The Alabama statute provides that
the weighing process "shall not be defined to mean a mere tallying of
aggravating and mitigating circumstances for the purpose of numerical
comparison," Ala.Code § 13A-5-48 (1994), which is no less than what
the Constitution requires, see Proffitt, 428 U.S., at 258, 96 S.Ct.,
at 2969 (joint opinion). The disparate treatment of jury verdicts
simply reflects the fact that, in the subjective weighing process, the
emphasis given to each decisional criterion must of necessity vary in
order to account for the particular circumstances of each case. See
Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d
1 (1982) ("A consistency produced by ignoring individual differences
is a false consistency"). In any event, Harris does not show how the
various statements affect her case. She does not bring an equal
protection claim, and she does not contest the lower courts'
conclusion that her sentence is proportionate to that imposed in
similar cases. The sentiments expressed in unrelated cases do not
render her punishment violative of the Eighth Amendment.
The Constitution permits the
trial judge, acting alone, to impose a capital sentence. It is thus
not offended when a State further requires the sentencing judge to
consider a jury's recommendation and trusts the judge to give it the
proper weight. Accordingly, we affirm the judgment of the Alabama
Supreme Court.
It is so ordered.
*****
Justice STEVENS, dissenting.
Alabama's capital sentencing
statute is unique. In Alabama, unlike any other State in the Union,
the trial judge has unbridled discretion to sentence the defendant to
death—even though a jury has determined that death is an inappropriate
penalty, and even though no basis exists for believing that any other
reasonable, properly instructed jury would impose a death sentence.
Even if I accepted the reasoning of Spaziano v. Florida, 468 U.S. 447,
457-465, 104 S.Ct. 3154, 3160-3164, 82 L.Ed.2d 340 (1984), which I do
not, see id., at 467, 104 S.Ct., at 3166 (STEVENS, J., concurring in
part and dissenting in part), I would conclude that the complete
absence of standards to guide the judge's consideration of the jury's
verdict renders the statute invalid under the Eighth Amendment and the
Due Process Clause of the Fourteenth Amendment.
* Our opinions have repeatedly
emphasized that death is a fundamentally different kind of penalty
from any other that society may impose.1State legislatures' assignments of sentencing
authority exemplify the distinction. In every State except Oklahoma,
the trial judge rather than the jury is responsible for sentencing in
noncapital cases. The opposite consensus, however, prevails in capital
cases. In 33 of the 37 States that authorize capital punishment, the
jury participates in the sentencing decision. In 29 of those States,
the jury's decision is final; in the other four—Alabama, Delaware,
Florida, and Indiana—the judge has the power to override the jury's
decision. Russell, The Constitutionality of Jury Override in Alabama
Death Penalty Cases, 46 Ala.L.Rev. 5, 9-10 (1994). Thus, 33 of the 37
state legislatures that have enacted death penalty statutes have given
the jury sentencing responsibilities that differ from the prevailing
view of the jury's role in noncapital cases. The Federal Government
also provides for jury sentencing in capital cases.2
These legislative decisions
reflect the same judgment expressed in England in 1953 after a 4-year
study by the Royal Commission on Capital Punishment:
"The question whether there are
grounds for relieving the prisoner from the liability to be sentenced
to death is a question of quite a different order from the question
whether he should serve a shorter or a longer term of imprisonment,
and involves much deeper moral and social issues. The lesson of
history is that, when a criminal offence is punishable by death, in
practice juries will not confine their attention to the issue of guilt
and ignore the sentence which conviction entails. In the past, British
juries, by perverse verdicts and by petitions, did at least as much as
the campaigns of the reformers to bring the law into conformity with
the developing moral conceptions of the community, especially in the
field of capital punishment. It may well be argued that the men and
women of the jury may be regarded as a microcosm of the community, who
will reflect the changing attitudes of society as a whole to the
infliction of capital punishment, and that there could therefore be no
more appropriate body to decide whether the fellow-citizen whom they
have found guilty of murder should suffer the penalty of death
prescribed by the law or should receive a lesser punishment." Royal
Commission on Capital Punishment 1949-1953, Report 200 (1953).
In ordinary, noncapital
sentencing decisions, judges consider society's interests in
rehabilitating the offender, in incapacitating him from committing
offenses in the future, and in deterring others from committing
similar offenses. In capital sentencing decisions, however,
rehabilitation plays no role; incapacitation is largely irrelevant, at
least when the alternative of life imprisonment without possibility of
parole is available;3and the assumption that death provides a greater deterrent than
other penalties is unsupported by persuasive evidence.4Instead, the interest that we have identified
as the principal justification for the death penalty is retribution:
"capital punishment is an expression of society's moral outrage at
particularly offensive conduct." Gregg v. Georgia, 428 U.S. 153, 183,
96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart,
Powell, and STEVENS, JJ.); see Gillers, Deciding Who Dies, 129
U.Pa.L.Rev. 1, 54-56 (1980). A capital sentence expresses the
community's judgment that no lesser sanction will provide an adequate
response to the defendant's outrageous affront to humanity. Gregg, 428
U.S., at 184, 96 S.Ct., at 2930. A representative cross-section of the
community should bear the responsibility to "express the conscience of
the community on the ultimate question of life or death" in particular
cases. Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770,
1775, 20 L.Ed.2d 776 (1968) (footnote omitted). An expression of
community outrage carries the legitimacy of law only if it rests on
fair and careful consideration, as free as possible from passion or
prejudice. Although the public's apparent zeal for legislation
authorizing capital punishment might cast doubt on citizens' capacity
to apply such legislation fairly, I am convinced that our jury system
provides reliable insulation against the passions of the polity.
Voting for a political candidate who vows to be "tough on crime"
differs vastly from voting at the conclusion of an actual trial to
condemn a specific individual to death. Jurors' responsibilities
terminate when their case ends; they answer only to their own
consciences; they rarely have any concern about possible reprisals
after their work is done. More importantly, they focus their attention
on a particular case involving the fate of one fellow citizen, rather
than on a generalized remedy for a global category of faceless violent
criminals who, in the abstract, may appear unworthy of life. A jury
verdict expresses a collective judgment that we may fairly presume to
reflect the considered view of the community.
The Constitution does not permit
judges to determine the guilt or innocence of an accused without her
consent. The same reasons that underlie that prohibition apply to
life-or-death sentencing decisions. The Framers of our Constitution
"knew from history and experience that it was necessary to protect . .
. against judges too responsive to the voice of higher authority."
Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20
L.Ed.2d 491 (1968). As we explained in Duncan:
"The jury trial provisions in
the Federal and State Constitutions reflect a fundamental decision
about the exercise of official power—a reluctance to entrust plenary
powers over the life and liberty of the citizen to one judge or to a
group of judges. Fear of unchecked power, so typical of our State and
Federal Governments in other respects, found expression in the
criminal law in this insistence upon community participation in the
determination of guilt or innocence." Ibid.
Community participation is as
critical in life-or-death sentencing decisions as in those decisions
explicitly governed by the constitutional guarantee of a jury trial.
The "higher authority" to whom present-day capital judges may be "too
responsive" is a political climate in which judges who covet higher
office—or who merely wish to remain judges —must constantly profess
their fealty to the death penalty.5Alabama trial judges face partisan election every
six years. Ala.Code § 17-2-7 (1987). The danger that they will bend to
political pressures when pronouncing sentence in highly publicized
capital cases is the same danger confronted by judges beholden to King
George III.
II
In my opinion, total reliance on
judges to pronounce sentences of death is constitutionally
unacceptable. See Walton v. Arizona, 497 U.S. 639, 708, 110 S.Ct.
3047, 3086, 111 L.Ed.2d 511 (1990) (STEVENS, J., dissenting). While
the addition of an advisory jury may ameliorate concerns about
judicial sentencing in some cases, more often that addition makes the
scheme much worse, especially when, as in Alabama, the jury's verdict
carries no necessary weight.
If Alabama's statute expressly
provided for a death sentence upon a verdict by either the jury or the
judge, I have no doubt it would violate the Constitution's command
that no defendant "be twice put in jeopardy of life or limb." U.S.
Const., Amdt. V; cf. Bullington v. Missouri, 451 U.S. 430, 444-46, 101
S.Ct. 1852, 1860-1862, 68 L.Ed.2d 270 (1981). The Alabama scheme has
the same practical effect. As the Court recognizes, ante, at __,
Alabama trial judges almost always adopt jury verdicts recommending
death; a prosecutor who wins before the jury can be confident that the
defendant will receive a death sentence. A prosecutor who loses before
the jury gets a second, fresh opportunity to secure a death sentence.
She may present the judge with exactly the same evidence and arguments
that the jury rejected. The defendant's life is twice put in jeopardy,
once before the jury and again in the repeat performance before a
different, and likely less sympathetic, decisionmaker. A scheme that
we assumed would "provide capital defendants with more, rather than
less, judicial protection," Dobbert v. Florida, 432 U.S. 282, 295, 97
S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977),6has perversely devolved into a procedure that
requires the defendant to stave off a death sentence at each of two de
novo sentencing hearings.
Not surprisingly, given the
political pressures they face, judges are far more likely than juries
to impose the death penalty. This has long been the case,7and the recent experience of judicial
overrides confirms it. Alabama judges have vetoed only five jury
recommendations of death, but they have condemned 47 defendants whom
juries would have spared.8The Court acknowledges this "ostensibly surprising" fact,
ante, at __, but dismisses it as inconclusive, because "we do not know
. . . how many cases in which a jury recommendation of life
imprisonment is adopted would have ended differently had the judge not
been required to consider the jury's advice." Ibid. This attempt to
shrug off the reality of Alabama capital sentencing misses the point.
Perhaps Alabama judges would be even more severe, and their sentences
even more frequently inconsistent with the community's sense of
justice, if Alabama provided for no jury verdicts at all. But the
proper frame of reference is not a sentencing scheme with no jury;
rather, it is a sentencing scheme with no judge—the scheme maintained
by 29 of 37 States with capital punishment. In that comparison, the
fact that Alabama trial judges have overridden more than nine juries'
life recommendations for every vetoed death recommendation is
conclusive indeed. Death sentences imposed by judges, especially
against jury recommendations, sever the critical "link between
contemporary community values and the penal system." Witherspoon, 391
U.S., at 519, n. 15, 88 S.Ct., at 1775, n. 15. They result in the
execution of defendants whom the community would spare.
Death sentences imposed by
judges over contrary jury verdicts do more than countermand the
community's judgment: they express contempt for that judgment.
Judicial overrides undermine the jury system's central tenet that
"sharing in the administration of justice is a phase of civic
responsibility." Thiel v. Southern Pacific Co., 328 U.S. 217, 227, 66
S.Ct. 984, 989, 90 L.Ed. 1181 (1946) (Frankfurter, J., dissenting).
Overrides also sacrifice the legitimacy of jury verdicts, at
potentially great cost. Whereas the public presumes that a death
sentence imposed by a jury reflects the community's judgment that
death is the appropriate response to the defendant's crime, the same
presumption does not attach to a lone government official's decree.
Indeed, government-sanctioned executions unsupported by judgments of a
fair cross-section of the citizenry may undermine respect for the
value of human life itself and unwittingly increase tolerance of
killing.9As
Justice Brandeis reminded us, "government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole people
by its example. Crime is contagious." Olmstead v. United States, 277
U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (dissenting
opinion). Unless the imposition of the death penalty consistently
rests on the most scrupulous regard for fair procedure and the
application of accepted community standards, it may well teach a
lesson that aggravates the very dangers it was intended to deter.
without giving him a chance to
present this information to a jury. See Jacobs v. Scott, 513 U.S.
----, ----, 115 S.Ct. 711, ----, 130 L.Ed.2d 618 (1995) (STEVENS, J.,
dissenting from denial of stay of execution). Six days later, a news
account described death penalty supporters' lack of concern about the
danger of executing innocent people. "One proponent of capital
punishment likened the death penalty to a childhood vaccine approved
by the government with full knowledge that at least one child,
somewhere, would die from an adverse reaction." Verhovek, When Justice
Shows Its Darker Side, N.Y. Times (Jan. 8, 1995), sec. 4, p. 6.
III
If the Court correctly held in
Spaziano that the Constitution's concerns with regularity and fairness
do not bar judges from imposing death sentences over contrary jury
verdicts, one would at least expect the Eighth Amendment and the Due
Process Clause of the Fourteenth Amendment to require that such
schemes maintain strict standards to regularize and constrain the
judge's discretion. The Court today refuses to impose any standard,
holding that to do so would be "micro-management." Ante, at __. But
this case involves far more than a mundane administrative detail.
Alabama stands alone among the
States in its refusal to constrain its judges' power to condemn
defendants over contrary jury verdicts. The Florida statute upheld in
Spaziano, as interpreted by the Florida Supreme Court, requires the
prosecutor to satisfy a more stringent standard before the judge than
before the jury, prohibiting a judicial override unless the facts
supporting the death sentence are "so clear and convincing that
virtually no reasonable person could differ." Tedder v. State, 322
So.2d 908, 910 (1975). If that standard is satisfied, a judge may
rationally presume that the jury's verdict did not fairly reflect the
judgment of the community. Delaware and Indiana impose similar
requirements for overrides. See Pennell v. State, 604 A.2d 1368,
1377-1378 (Del.1992); Martinez-Chavez v. State, 534 N.E.2d 731, 735
(Ind.1989).
We have repeatedly cited the
Tedder standard with approval, suggesting that the Constitution
requires such a constraint on a jury override provision. See Spaziano,
468 U.S., at 465, 104 S.Ct., at 3164; Dobbert v. Florida, 432 U.S.
282, 294-295, 97 S.Ct. 2290, 2298-2299, 53 L.Ed.2d 344 (1977);
Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49
L.Ed.2d 913 (1976) (joint opinion of Stewart, Powell, and STEVENS,
JJ.). Today the Court dismisses those statements. After Justice
Blackmun stated in his opinion for the Court in Spaziano that "we are
satisfied that the Florida Supreme Court takes Tedder seriously and
has not hesitated to reverse a trial court if it derogates the jury's
role," he added, as the majority notes, that "our responsibility,
however, is not to second-guess the deference accorded the jury's
recommendation in a particular case, but to ensure that the result of
the process is not arbitrary or discriminatory." 468 U.S., at 465, 104
S.Ct., at 3164. The majority reads this second statement to mean that
"the hallmark of the analysis is not the particular weight a State
chooses to place upon the jury's advice." Ante, at __. That reading is
overly ambitious at best. The question whether the Constitution
requires the Tedder rule goes squarely to "the result of the process."
The Spaziano Court declined to upset the result in the "particular
case" before it based on the way the Florida Supreme Court had applied
Tedder in that case. It did not announce that it would have reached
the same result had Florida abjured Tedder entirely; rather, it
appears to have made Tedder's role in the Florida scheme a necessary
consideration in its evaluation of Florida overrides. The Court's
reading of Justice Blackmun's opinion in Spaziano is tenable, but a
more likely reading is that his opinion meant to echo our previous
suggestions that a jury override scheme is unconstitutional without
Tedder.
I would follow those suggestions
and recognize Tedder as a constitutional imperative. As I have
explained, an unfettered judicial override of a jury verdict for life
imprisonment cannot be taken to represent the judgment of the
community. A penalty that fails to reflect the community's judgment
that death is the appropriate sentence constitutes cruel and unusual
punishment under our reasoning in Gregg. Remarkably, the Court
attempts to bolster its holding by citing our reversal of a Florida
death sentence for error before the advisory jury. Ante, at __, citing
Espinosa v. Florida, 505 U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854
(1992). The Court forgets that the difference between Florida and
Alabama is precisely what is at stake in this case. The Constitution
compelled Espinosa for the same ultimate reason it compels Tedder: the
community's undistorted judgment must decide a capital defendant's
fate.10Proper
attention to Espinosa would lead the Court to reject the conclusion it
reaches today.
In reaching its result the Court
also fails to consider our longstanding principle 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, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). The
Spaziano Court held that the rejection of capital jury sentencing by
all but seven States, and of capital jury overrides by all but (at
that time) three, did not demonstrate an "evolving standard"
disfavoring overrides. Spaziano, 468 U.S., at 463-464, 104 S.Ct., at
3163-3164. Surely, however, the rejection of standardless overrides by
every State in the Union but Alabama is a different matter. Cf. Enmund
v. Florida, 458 U.S. 782, 789-793, 102 S.Ct. 3368, 3372-3374, 73
L.Ed.2d 1140 (1982).
The Court today casts a cloud
over the legitimacy of our capital sentencing jurisprudence. The most
credible justification for the death penalty is its expression of the
community's outrage. To permit the state to execute a woman in spite
of the community's considered judgment that she should not die is to
sever the death penalty from its only legitimate mooring. The absence
of any rudder on a judge's free-floating power to negate the
community's will, in my judgment, renders Alabama's capital sentencing
scheme fundamentally unfair and results in cruel and unusual
punishment. I therefore respectfully dissent.
The syllabus constitutes no part
of the opinion of the Court but has been prepared by the Reporter of
Decisions for the convenience of the reader. See United States v.
Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed.
499.
In Gregg v. Georgia, 428 U.S. 153,
96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), although we noted that
incapacitation had been advanced as a rationale for upholding the
death penalty, id., at 183, n. 28, 96 S.Ct., at 2929, n. 28 (opinion
of Stewart, Powell, and STEVENS, JJ.), the plurality opinion placed no
reliance on incapacitation as an acceptable justification. See
California v. Ramos, 463 U.S. 992, 1023, and n. 9, 103 S.Ct. 3446,
3465, and n. 9, 77 L.Ed.2d 1171 (1983) (Marshall, J., dissenting).
See, e.g., Spaziano v. Florida,
468 U.S. 447, 478-479, 104 S.Ct. 3154, 3172, 82 L.Ed.2d 340 (1984)
(STEVENS, J., concurring in part and dissenting in part); H. Zeisel,
The Limits of Law Enforcement 60-63 (1982); Gillers, Deciding Who
Dies, 129 U.Pa.L.Rev. 1, 49-54 (1980).
This climate is evident in
political attacks on candidates with reservations about the death
penalty. For example, challengers for United States Senate seats in
the recent elections routinely savaged their incumbent opponents for
supporting federal judicial nominees perceived to be "soft" on capital
punishment. See, e.g., Lehigh & Phillips, Romney, Kennedy Air Another
Round of Attack Ads, Boston Globe (Oct. 31, 1994), at Metro/Region 21;
Lesher, Huffington Attacks Rival on Judges, L.A. Times (Sep. 30,
1994), at A3; Political Notebook, Memphis Commercial Appeal (Oct. 8,
1994), at 3B (Frist-Sasser race). Some Senators have also made the
death penalty a litmus test in judicial confirmation hearings. See,
e.g., Lewis, G.O.P. To Challenge Judicial Nominees Who Oppose Death
Penalty, N.Y. Times (Oct. 15, 1993), at A26; Vick, Barkett's Foes Show
Strength Even in Defeat, St. Petersburg Times (Mar. 18, 1994), at 5B.
As one commentator has written, "[m]ost experts on penal systems agree
that capital punishment does not deter capital crime. But the public
believes that it does, and politicians have been switching
longstanding positions to accommodate that view. . . . This . . . is
the democratic system." Wills, Read Polls, Heed America, N.Y. Times
(Nov. 6, 1994), sec. 6 (magazine), p. 48.
I have always believed the
legislative decision to authorize an override was intended to protect
the defendant from the risk of an erroneous jury decision to impose
the death penalty. See Proffitt v. Florida, 428 U.S. 242, 252-53, 96
S.Ct. 2960, 2966-2967, 49 L.Ed.2d 913 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.). States have in the past argued
that the override would serve to protect defendants. See, e.g., Brief
for Respondent in Dobbert v. Florida, O.T.1976, No. 76-5306, p. 17
("It cannot be said that Florida's new [override] procedure reduces
the possibility of mercy. In fact, it is enhanced").
Statistics from Florida and
Indiana confirm that judges tend to override juries' life
recommendations far more often than their death recommendations.
Between 1972 and early 1992, Florida trial judges imposed death
sentences over 134 juries' recommendations of life imprisonment. See
Radelet and Mello, Death-to-Life Overrides: Saving the Resources of
the Florida Supreme Court, 20 Fla.St.U.L.Rev. 195, 196 (1992). During
the same period, Florida judges overrode only about 51 death
recommendations. Id., at 210-211. In Indiana, between 1980 and early
1994, judges had used overrides to impose eight death sentences and
only four life sentences. Memorandum from Paula Sites, Legal Director,
Indiana Public Defender Council, to Supreme Court Library (Feb. 8,
1994) (lodged with the Clerk of this Court). The even more extreme
disparity in Alabama may well be attributable to Alabama's unique
failure to adopt the more stringent standard that governs overrides in
the other states. See infra, at Part III.
Research has provided evidence
that executions actually increase the level of violence in society.
For example, a controlled, 56-year study in New York State revealed
that an average of two additional homicides occurred in the month
following an execution. See Bowers & Pierce, Deterrence or
Brutalization: What Is the Effect of Executions?, 26 Crime and
Delinquency 453 (1980). A 10-year study in California produced less
conclusive but similar results. See Graves, The Deterrent Effect of
Capital Punishment in California, in The Death Penalty in America 322,
327-331 (H. Bedau ed., 1967). Experienced prosecutors recognize this
reality. Morgenthau, What Prosecutors Won't Tell You, N.Y. Times (Feb.
7, 1995), at A25 ("[B]y their brutalizing and dehumanizing effect,
executions cause more murders than they prevent."). A court's
unilateral decree of a death sentence surely magnifies the risk of
such perverse consequences. This Court's recent refusal to stay an
execution provides an illustration. After a jury had sentenced the
defendant, the prosecutor announced that a different person had pulled
the trigger. Nevertheless, the state executed the condemned manmToday
the court dismisses
Of course, the majority is correct
to reaffirm the importance of remedying prejudicial error before
advisory juries. When the Court next has occasion to review an Alabama
jury-related error and the sentencing judge has not revealed the
degree of her reliance on the jury's advice, the majority apparently
will be content to presume that the error, and the jury decision it
tainted, mattered to the result.