Brown v. Sanders

Death Sentence: A Two Step Process

Sentencing an individual to death in the state of California is a two-step process involving an eligibility phase, outlined in California Penal Code § 190.2, and an individualized sentencing phase, outlined in California Penal Code § 190.3. The first step is the eligibility phase, which requires jurors to determine whether the offense committed falls within a class of “death-eligible crimes.” See Petition for Writ of Certiorari to the 9th Circuit, January 11, 2005, No. 04-980 at 4. California Penal Code § 190.2 includes a list of “special circumstances” to guide jurors in making this decision. For a crime to be death-eligible, jurors must make a factual determination that the crime involves at least one special circumstance that makes its commission particularly “death-worthy.” See Sanders v. Woodford, 373 F.3d 1054, 1061 (9th Cir. 2004); Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of Petitioner at 9–10 [hereinafter CJLF Brief]. At Sanders' second trial, jurors used four special circumstances to conclude that Sanders' crime was death-eligible: murder committed during a robbery, murder committed during a burglary, murder committed to prevent testimony, and murder describable as heinous, atrocious, and cruel. See Woodford, 373 F.3d at 1062; Cal. Penal Code § 190.2(a)(17)(A), (a)(17)(G), (a)(10), and (a)(14) (1978).

After a crime has been categorized as death-eligible, the sentencing phase calls for jurors to use eleven mitigating and aggravating factors outlined in California Penal Code § 190.3 to make an individualized decision about whether a defendant will receive a life sentence or the death penalty. See Woodford, 373 F.3d at 1061; CJLF Brief at 9. Although the statute does not individually designate the factors as “aggravating” or “mitigating,” Sanders interprets case law to show that factors (a) through (c) are aggravating factors while (d) through (k) are mitigating. See Brief for Respondent at 8. He contends that the plain language of the Penal Code expressly calls for a balancing of the mitigating and aggravating factors outlined in the code. See Id. He points out that the statute states on its face that, “If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.” Cal. Penal Code § 190.3.

Fixing 8th Amendment Error in a Weighing vs. Non-Weighing Jurisdiction

Whether the Court affirms the Ninth Circuit's decision turns on its interpretation of whether the California Penal Code designates California as a weighing or non-weighing state. In a weighing state, jurors use the same aggravating factors for determining death-eligibility and making the individualized decision about whether to impose a death sentence. See Petitioner's Brief on the Merits at 8. However, the jurors are limited to using specific, itemized aggravating factors and cannot look to general circumstances. See Id. at 9 (citing People v. Boyd, 700 P.2d 782, 790-91 (Cal. 1985)). In contrast, the hallmark of non-weighing states is that separate factors are used in the eligibility and sentencing phases. See Id. at 12. Under a non-weighing regime any error in the eligibility phase is thus unlikely to significantly prejudice the defendant's ultimate sentence (so long as the defendant is still determined to be death-eligible). See Id. at 6. Jurors in non-weighing states are not restricted by a list of aggravating factors, but are permitted to generally consider all relevant mitigating and aggravating circumstances. See CJLF Brief at 27.

Sanders argues that when California amended its 1977 death penalty statute in 1978, it shifted California from a non-weighing state to a weighing state. See Brief for Respondent at 10. California's 1977 death penalty statute granted Californian jurors considerable leeway in sentencing a defendant to death. See Id. At 9. Jurors were instructed to consider aggravating and mitigating circumstances in the sentencing phase. See Id. However, jurors received no additional instructions about the relative importance of these mitigating and aggravating factors, and there is general consensus that the 1977 statute was a non-weighing statute. See Id. at 10. In 1978, however, California passed a new death penalty statute that offered Californian jurors more guidance, specifically requiring jurors to balance aggravating and mitigating factors. See Id. Sanders argues that this change turned California into a weighing state. See Id. Sanders points to the plain language of the statute, which requires an outweighing of mitigating factors by aggravating factors to impose a death sentence. See Id. at 14. As a weighing state, Sanders maintains that California should use a federal standard of review to correct erroneous balancing of aggravating and mitigating factors. See Id. at 10. The federal standard requires finding that there was “harmless error beyond a reasonable doubt.” Id.

Whether or not California is a weighing state is central to this case because it bears directly on what importance should be given to California Supreme Court's dismissal of two of the four special circumstances. This is because one of the aggravating factors outlined in California Penal Code § 190.3(a), [hereinafter Factor (a)], calls for jurors to look at the “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.” If California is a weighing state, Factor (a) thus incorporates aggravating factors from the eligibility phase into the sentencing phase. See Brief for Respondent at 8. In Sanders case, this would mean that his chances of receiving a death sentence were significantly increased because the same invalid, aggravating factors were being used twice. See Id. In other words, Sanders argues that because the jurors conducted their individualized sentencing using two invalid aggravating circumstances at both the eligibility and sentencing phases, he was denied the discretionary, individualized sentencing guaranteed under the Eighth Amendment. See Id.

The State argues that California is not a weighing state, and even if it is, its use of a different standard of review was sufficient to determine that Sanders was not prejudiced. See Petitioner's Brief on the Merits at 10. The State contends that California's status as a non-weighing state is supported by the Penal Code's failure to delineate individual factors as aggravating or mitigating, as well as its inclusion in 190.3(a) of “circumstances of a crime” and “special circumstances.” See Id. at 17. The State insists that a true weighing state provides limited, specific aggravating factors in its code in order to ensure the least amount of randomness in the aggravation calculation. See Id. at 15, 18-19. Unlike a weighing state, however, California has completely separate eligibility and sentencing factors. See Sanders v. Woodford, 373 F.3d 1054, 1062 (9th Cir. 2004). Contrary to Sanders' suggestion, the State maintains that the inclusion of “special [aggravating] circumstances” in both 190.2 and 190.3(a) is not suggestive of a weighing statute because Factor (a) asks jurors to also focus on the general circumstances of the crime. See Petitioner's Brief on the Merits at 18. If Factor (a) had not asked jurors to consider general circumstances in addition to the aggravating factors, then the California statute would have the hallmark of a weighing statute—i.e., consistent use of aggravating factors at both the eligibility and sentencing phases. See Id. at 17, n8.

To fix the kind of Eighth Amendment error that results from balancing invalid, aggravating factors, an appellate judge must either conduct an independent reweighing of the factors, excluding the invalid, aggravating circumstances, or remand to the trial court for resentencing. See Sanders v. Woodford, 373 F.3d 1054, 1061 (9th Cir. 2004). Sanders argues that only if the balancing of the invalid, aggravating special circumstances was “harmless error beyond a reasonable doubt” should the prior conviction will be affirmed. See Petitioner's Brief on the Merits at 16. The State asserts that the California Supreme Court has always employed a “reasonable possibility” standard of review, and that this standard is functionally equivalent to “harmless error beyond a reasonable doubt.” See Id. Moreover, the state finds it absurd that the Ninth Circuit found that there was a “substantial and injurious effect” on the case's outcome simply because the California federal standard was not used. See Id. at 32, n15. The State insists that there is no need for “talismanic incantation” of the federal review standard in order to fully assess whether an Eighth Amendment error occurred. See Id. at 30. It is now up to the Supreme Court to determine which standard of review will be applied to Eighth Amendment.