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Walton v. Arizona (88-7351), 497 U.S. 639 (1990)
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ALAN WALTON, PETITIONER v. ARIZONA

No. 88-7351

[June 27, 1990]

Justice Stevens, dissenting.

While I join Justice Blackmun's dissent, I write separately to dissent from the Court's holding in Part II and to comment on Justice Scalia's opinion.

I

The Court holds in Part II of its opinion that a person is not entitled to a jury determination of facts that must be established before the death penalty may be imposed. I am convinced that the Sixth Amendment requires the opposite conclusion.

Arizona Rev. Stat. Ann. 13-1105 (C) (1989) provides that first degree murder, which includes both premeditated murder and felony murder, is "punishable by death or life imprisonment as provided by 13-703." Section 13-703(B) requires, after guilt of first-degree murder is established, that a judge conduct a hearing to determine if any statutory aggravating or mitigating circumstances exist. The State bears the burden of proving the existence of any aggravating circumstance by evidence admissible under the Arizona Rules of Evidence. 13-703(C). Section 13-703(E) then provides, as the Arizona Supreme Court has explained: "Where none of the statutory aggravating circumstances are found to be present, our statute prohibits the death penalty. Where one or more statutory aggravating circumstance is found, and no mitigation exists, the statute requires the death penalty. Where both aggravating and mitigating circumstances are found in a given case, the trial judge, and then this court on review, must determine whether the mitigating circumstances are 'sufficiently substantial to call for leniency.'" State v. Gretzler, 135 Ariz. 42, 55, 659 P. 2d 1, 13 (citations omitted), cert. denied, 461 U.S. 971 (1983). Thus, under Arizona law, as construed by Arizona's highest court, a first-degree murder is not punishable by a death sentence until at least one statutory aggravating circumstance has been proved. [n.1]

In this case, the sentencing judge found two aggravating circumstances: that petitioner committed the offense "as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value" and that he committed it "in an especially heinous, cruel or depraved manner." Ariz. Rev. Stat. Ann. 13-703(F)(5), (F)(6) (1989). [n.2] At issue is the narrow question whether these findings about petitioner's commission of the offense are, under Arizona law, elements of a capital crime and therefore must be determined by a jury.

If this question had been posed in 1791, when the Sixth Amendment became law, the answer would have been clear. By that time,

"the English jury's role in determining critical facts in homicide cases was entrenched. As fact-finder, the jury had the power to determine not only whether the defendant was guilty of homicide but also the degree of the offense. Moreover, the jury's role in finding facts that would determine a homicide defendant's eligibility for capital punishment was particularly well established. Throughout its history, the jury determined which homicide defendants would be subject to capital punishment by making factual determinations, many of which related to difficult assessments of the defendant's state of mind. By the time the Bill of Rights was adopted, the jury's right to make these determinations was unquestioned." [n.3]

Similarly, if this question had arisen in 1968, when this Court held the guarantee of trial by jury in criminal prosecutions binding on the States, I do not doubt that petitioner again would have prevailed. Justice White's eloquent opinion for the Court in Duncan v. Louisiana, 391 U.S. 145 (1968), was faithful to the history and meaning of the Sixth Amendment:

"The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689. In the 18th century Blackstone could write:

"'Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that . . . the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion.'

"Jury trial came to America with English colonists, and received strong support from them.

.....

"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, 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." Id., at 151-152, 155-156 (footnotes omitted).

Since Duncan, this Court has held that a death sentence under Florida law may be imposed by a judge, rather than a jury, Spaziano v. Florida, 468 U.S. 447 (1984), and has held that a judge may make a factual determination that mandates imposition of a minimum sentence within the penalty range of certain noncapital offenses, McMillan v. Pennsylvania, 477 U.S. 79 (1986). By stretching the limits of sentencing determinations that are made by judges exposed to "the voice of higher authority," these decisions have encroached upon the factfinding function that has so long been entrusted to the jury. [n.4] Further distorting the sentencing function to encompass findings of factual elements necessary to establish a capital offense is the unhappy product of the gradual "increase and spread" of these precedents, "to the utter disuse of juries in questions of the most momentous concern." [n.5] Even if the unfortunate decisions in Spaziano and McMillan fell just one step short of the stride the Court takes today, it is not too late to change our course and follow the wise and inspiring voice that spoke for the Court in Duncan v. Louisiana.

II

Justice Scalia announces in a separate opinion that henceforth he will not regard Woodson v. North Carolina, 428 U.S. 280 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976), Lockett v. Ohio, 438 U.S. 586 (1978), Godfrey v. Georgia, 446 U.S. 420 (1980), and other cases adopting their reasoning as binding precedent. The major premise for this rejection of our capital sentencing jurisprudence is his professed inability to reconcile those cases with the central holding in Furman v. Georgia, 408 U.S. 238 (1972). [n.6] Although there are other flaws in Justice Scalia's opinion, [n.7] it is at least appropriate to explain why his major premise is simply wrong.

The cases that Justice Scalia categorically rejects today rest on the theory that the risk of arbitrariness condemned in Furman is a function of the size of the class of convicted persons who are eligible for the death penalty. When Furman was decided, Georgia included virtually all defendants convicted of forcible rape, armed robbery, kidnaping and first-degree murder in that class. As the opinions in Furman observed, in that large class of cases race and other irrelevant factors unquestionably played an unacceptable role in determining which defendants would die and which would live. However, the size of the class may be narrowed to reduce sufficiently that risk of arbitrariness, even if a jury is then given complete discretion to show mercy when evaluating the individual characteristics of the few individuals who have been found death eligible.

The elaborate empirical study of the administration of Georgia's capital sentencing statute that the Court considered in McCleskey v. Kemp, 481 U.S. 279 (1987), further illustrates the validity of this theory. In my opinion in that case I observed:

"One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated." Id., at 367 (dissenting opinion).

The Georgia Supreme Court itself understood the concept that Justice Scalia apparently has missed. In Zant v. Stephens, 462 U.S. 862 (1983), we quoted the following excerpt from its opinion analogizing the law governing homicides in Georgia to a pyramid:

"'All cases of homicide of every category are contained within the pyramid. The consequences flowing to the perpetrator increase in severity as the cases proceed from the base of the apex, with the death penalty applying only to those few cases which are contained in the space just beneath the apex. To reach that category a case must pass through three planes of division between the base and the apex.

"'The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder, voluntary manslaughter, involuntary manslaughter, and justifiable homicide. In deciding whether a given case falls above or below this plane, the function of the trier of facts is limited to finding facts. The plane remains fixed unless moved by legislative act.

"'The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances. The function of the factfinder is again limited to making a determination of whether certain facts have been established. Except where there is treason or aircraft hijacking, a given case may not move above this second plane unless at least one statutory aggravating circumstance exists. Code Ann. 27-2534.1(c).

"'The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death. The plane itself is established by the factfinder. In establishing the plane, the factfinder considers all evidence in extenuation, mitigation and aggravation of punishment. Code Ann. 27-2503 and 27-2534.1. There is a final limitation on the imposition of the death penalty resting in the automatic appeal procedure: This court determines whether the penalty of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the statutory aggravating circumstances are supported by the evidence; and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases. Code Ann. 27-2537. Performance of this function may cause this court to remove a case from the death penalty category but can never have the opposite result.

"'The purpose of the statutory aggravating circumstances is to limit to a large degree, but not completely, the factfinder's discretion. Unless at least one of the ten statutory aggravating circumstances exists, the death penalty may not be imposed in any event. If there exists at least one statutory aggravating circumstance, the death penalty may be imposed but the factfinder has a discretion to decline to do so without giving any reason. Waters v. State, 248 Ga. 355, 369, 283 S.E. 2d 238 (1981); Hawes v. State, 240 Ga. 327, 334, 240 S.E. 2d 833 (1977); Fleming v. State, 240 Ga. 142, 240 S.E. 2d 37 (1977). In making the decision as to the penalty, the factfinder takes into consideration all circumstances before it from both the guilt-innocence and the sentence phases of the trial. These circumstances relate both to the offense and the defendant.

"'A case may not pass the second plane into that area in which the death penalty is authorized unless at least one statutory aggravating circumstance is found. However, this plane is passed regardless of the number of statutory aggravating circumstances found, so long as there is at least one. Once beyond this plane, the case enters the area of the factfinder's discretion, in which all the facts and circumstances of the case determine, in terms of our metaphor, whether or not the case passes the third plane and into the area in which the death penalty is imposed.' 250 Ga. 97, 99-100, 297 S.E. 2d 1, 3-4 (1982)." Id., at 870-872.

Justice Scalia ignores the difference between the base of the pyramid and its apex. A rule that forbids unguided discretion at the base is completely consistent with one that requires discretion at the apex. After narrowing the class of cases to those at the tip of the pyramid, it is then appropriate to allow the sentencer discretion to show mercy based on individual mitigating circumstances in the cases that remain.

Perhaps a rule that allows the specific facts of particular cases to make the difference between life and death — a rule that is consistent with the common-law tradition of case-by-case adjudication — provides less certainty than legislative guidelines that mandate the death penalty whenever specified conditions are met. Such guidelines would fit nicely in a Napoleonic Code drafted in accord with the continental approach to the formulation of legal rules. However, this Nation's long experience with mandatory death sentences — a history recounted at length in our opinion in Woodson and entirely ignored by Justice Scalia today — has led us to reject such rules. I remain convinced that the approach adopted by this Court in Weems v. United States, 217 U.S. 349 (1910), and in Trop v. Dulles, 356 U.S. 86 (1958), followed by Justice Stewart, Justice Powell and myself in 1976, and thereafter repeatedly endorsed by this Court, is not only wiser, but far more just, than the reactionary position espoused by Justice Scalia today.



Notes

1 Although Arizona's aggravating circumstances are not "separate penalties or offenses," Poland v. Arizona, 476 U.S. 147, 156 (1986) (double jeopardy challenge), they operate as statutory "elements" of capital murder under Arizona law because in their absence, that sentence is unavailable under 13-1105 and 13-703. Cf. McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986) (5-year minimum term required upon finding by sentencing court was "a penalty within the range already available to it without the special finding"); Cabana v. Bullock, 474 U.S. 376, 385 (1986) (requiring a finding of intent to comply with the Eighth Amendment does not establish any new element of the state's definition of a capital offense).

2 This Court has long distinguished a jury's determination of "whether a defendant is guilty of having engaged in certain criminal conduct" from a sentencing judge's consideration of "the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 246-247 (1949). Both of the aggravating circumstances in this case concern the offense itself, not the offender. Indeed, the Arizona courts' findings of aggravation rested entirely on evidence that had been presented to the jury during the guilt phase of the trial; the Arizona Su preme Court disregarded the only testimony about aggravation offered at the sentencing hearing as irrelevant. Sentencing Hearing Tr. (Jan. 26-27, 1987); 159 Ariz. 571, 587, 769 P. 2d 1017, 1033 (1989) (testimony about victim after shooting did not bear on cruelty). Cf. Spaziano v. Florida, 468 U.S. 447, 452 (1984) (after a Florida jury recommended life, sentencing judge found defendant's felony record was an aggravating factor); Hildwin v. Florida, 490 U.S. , (1989) (after a Florida jury recommended death, sentencing judge found defendant's felony record and status as a prisoner at the time of the crime were aggravating factors).

3 White, Fact-Finding and the Death Penalty: The Scope of a Capital Defendant's Right to Jury Trial, 65 Notre Dame L.Rev. 1, 10-11 (1989) (footnote omitted; emphasis added). The right to a jury trial in criminal matters was most strongly guarded because "in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the [c]rown, in suits between the king and the subject, than in disputes between one individual and another. Id., at 10 (quoting 4 W. Blackstone, Commentaries 343 (1769)). For a view of earlier practices, see generally Green, The Jury and the English Law of Homicide, 1200-1600, 74 Mich.L.Rev. 413 (1976).

4 Duncan v. Louisiana, 391 U.S. 145, 156 (1968). Although the 18th-century English ruler no longer bears upon our judges, today the "voice of higher authority" to which elected judges too often appear to listen is that of the many voters who generally favor capital punishment but who have far less information about a particular trial than the jurors who have sifted patiently through the details of the relevant and admissible evidence. How else do we account for the disturbing propensity of elected judges to impose the death sentence time after time notwithstanding a jury's recommendation of life? In Florida, where the jury provides an advisory sentence before the judge imposes a sentence in a capital case, Fla. Stat. 921.141 (1989), judges have imposed death over a jury recommendation of life in 125 of the 617 death sentences entered between December 1972 and December 1989. See also Radelet, Rejecting the Jury: The Imposition of the Death Penalty in Florida, 18 U.C.D. L. Rev. 1409 (1985) (judges are more likely than juries to favor the imposition of a death sentence).

5 "So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate, not only from all open attacks, (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most con venient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern." 4 W.Blackstone, Commentaries 343-344 (1769).

6 Furman has been characterized as mandating that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg v. Georgia, 428 U.S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

7 For example, Justice Scalia incorrectly assumes that our holdings in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976), rest entirely on the view that mandatory death penalty statutes pose the same risk of arbitrariness that supported the Court's decision in Furman v. Georgia, 408 U.S. 238 (1972). See ante, at 16-17. In fact, that consideration was only one of the three grounds for invalidating the North Carolina and Louisiana mandatory statutes. See Woodson, 428 U.S., at 288-305. Justice Scalia ironically overlooks a more traditional reason supporting our conclusion in Woodson, the growing societal consensus against mandatory imposition of the death penalty:

"The history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society — jury determinations and legislative enactments — both point conclusively to the repudiation of automatic death sentences. Id., at 292-293.

We further held that 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." Id., at 304.