|Woodson v. North Carolina
[ Stewart, et.al. ]
[ Brennan ]
[ Marshall ]
[ White ]
[ Blackmun ]
[ Rehnquist ]
Woodson v. North Carolina
CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
MR. JUSTICE REHNQUIST, dissenting.
The difficulties which attend the plurality's explanation for the result it reaches tend at first to obscure difficulties at least as significant which inhere in the unarticulated premises necessarily underlying that explanation. I advert to the latter only briefly, in order to devote the major and following portion of this dissent to those issues which the plurality actually considers.
As an original proposition, it is by no means clear that the prohibition against cruel and unusual punishments embodied in the Eighth Amendment, and made applicable to the States by the Fourteenth Amendment, Robinson v. California, 370 U.S. 660 (1962), was not limited to those punishments deemed cruel and unusual at the time of the adoption of the Bill of Rights. McGautha v. California, 402 U.S. 183, 225 (1971) (opinion of Black, J.). If Weems v. United States, 217 U.S. 349 (1910), dealing not with the Eighth Amendment, but with an identical provision contained in the Philippine Constitution, and the plurality opinion in Trop v. Dulles, 356 U.S. 86 (1958), are to be taken as indicating the contrary, they should surely be weighed against statements in cases such as Wilkerson v. Utah, 99 U.S. 130 (1879); In re Kemmler, 136 U.S. 436 (1890); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947), and the plurality opinion in Trop itself, that the infliction of capital punishment is not, in itself, violative of the Cruel and Unusual Punishments Clause. Thus, for the plurality to begin its analysis with the assumption that it need only demonstrate that "evolving standards of decency" show that contemporary "society" [p309] has rejected such provisions is itself a somewhat shaky point of departure. But even if the assumption be conceded, the plurality opinion's analysis nonetheless founders.
The plurality relies first upon its conclusion that society has turned away from the mandatory imposition of death sentences, and second upon its conclusion that the North Carolina system has "simply papered over" the problem of unbridled jury discretion which two of the separate opinions in Furman v. Georgia, 408 U.S. 238 (1972), identified as the basis for the judgment rendering the death sentences there reviewed unconstitutional. The third "constitutional shortcoming" of the North Carolina statute is said to be
its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.
Ante at 303.
I do not believe that any one of these reasons singly, or all of them together, can withstand careful analysis. Contrary to the plurality's assertions, they would import into the Cruel and Unusual Punishments Clause procedural requirements which find no support in our cases. Their application will result in the invalidation of a death sentence imposed upon a defendant convicted of first-degree murder under the North Carolina system, and the upholding of the same sentence imposed on an identical defendant convicted on identical evidence of first-degree murder under the Florida, Georgia, or Texas systems -- a result surely as "freakish" as that condemned in the separate opinions in Furman
The plurality is simply mistaken in its assertion that
[t]he history of mandatory death penalty statutes in the United States thus reveals that the practice of sentencing [p310] to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid.
Ante at 292-293. This conclusion is purportedly based on two historic developments: the first, a series of legislative decisions during the 19th century narrowing the class of offenses punishable by death; the second, a series of legislative decisions, during both the 19th and 20th centuries, through which mandatory imposition of the death penalty largely gave way to jury discretion in deciding whether or not to impose this ultimate sanction. The first development may have some relevance to the plurality's argument in general, but has no bearing at all upon this case. The second development, properly analyzed, has virtually no relevance even to the plurality's argument.
There can be no question that the legislative and other materials discussed in the plurality's opinion show a widespread conclusion on the part of state legislatures during the 19th century that the penalty of death was being required for too broad a range of crimes, and that these legislatures proceeded to narrow the range of crimes for which such penalty could be imposed. If this case involved the imposition of the death penalty for an offense such as burglary or sodomy, see ante at 289, the virtually unanimous trend in the legislatures of the States to exclude such offenders from liability for capital punishment might bear on the plurality's Eighth Amendment argument. But petitioners were convicted of first-degree murder, and there is not the slightest suggestion in the material relied upon by the plurality that there had been any turning away at all, much less any such unanimous turning away, from the death penalty as a punishment for those guilty of first-degree murder. The legislative narrowing of the spectrum of capital crimes, therefore, while very arguably representing a general societal judgment, since the trend was so widespread, simply never [p311] reached far enough the exclude the sort of aggravated homicide of which petitioners stand convicted.
The second string to the plurality's analytical bow is that legislative change from mandatory to discretionary imposition of the death sentence likewise evidences societal rejection of mandatory death penalties. The plurality simply does not make out this part of its case, however, in large part because it treats as being of equal dignity with legislative judgments the judgments of particular juries and of individual jurors.
There was undoubted dissatisfaction, from more than one sector of 19th century society, with the operation of mandatory death sentences. One segment of that society was totally opposed to capital punishment, and was apparently willing to accept the substitution of discretionary imposition of that penalty for its mandatory imposition as a halfway house on the road to total abolition. Another segment was equally unhappy with the operation of the mandatory system, but for an entirely different reason. As the plurality recognizes, this second segment of society was unhappy with the operation of the mandatory system not because of the death sentences imposed under it, but because people obviously guilty of criminal offenses were not being convicted under it. See ante at 293. Change to a discretionary system was accepted by these persons not because they thought mandatory imposition of the death penalty was cruel and unusual, but because they thought that, if jurors were permitted to return a sentence other than death upon the conviction of a capital crime, fewer guilty defendants would be acquitted. See McGautha, 402 U.S. at 199.
So far as the action of juries is concerned, the fact that, in some cases, juries operating under the mandatory system refused to convict obviously guilty defendants does not reflect any "turning away" from the death penalty, or the mandatory death penalty, supporting the [p312] proposition that it is "cruel and unusual." Given the requirement of unanimity with respect to jury verdicts in capital cases, a requirement which prevails today in States which accept a nonunanimous verdict in the case of other crimes, see Johnson v. Louisiana, 406 U.S. 356, 363-364 (1972), it is apparent that a single juror could prevent a jury from returning a verdict of conviction. Occasional refusals to convict, therefore, may just as easily have represented the intransigence of only small minority of 12 jurors, as well as the unanimous judgment of all 12. The fact that the presence of such jurors could prevent conviction in a given case, even though the majority of society, speaking through legislatures, had decreed that it should be imposed, certainly does not indicate that society as a whole rejected mandatory punishment for such offenders; it does not even indicate that those few members of society who serve on juries, as a whole, had done so.
The introduction of discretionary sentencing likewise creates no inference that contemporary society had rejected the mandatory system as unduly severe. Legislatures enacting discretionary sentencing statutes had no reason to think that there would not be roughly the same number of capital convictions under the new system as under the old. The same subjective juror responses which resulted in juror nullification under the old system were legitimized, but, in the absence of those subjective responses to a particular set of facts, a capital sentence could as likely be anticipated under the discretionary system as under the mandatory. And at least some of those who would have been acquitted under the mandatory system would be subjected to at least some punishment under the discretionary system, rather than escaping altogether a penalty for the crime of which they were guilty. That society was unwilling to accept the [p313] paradox presented to it by the actions of some maverick juries or jurors -- the acquittal of palpably guilty defendants -- hardly reflects the sort of an "evolving standard of decency" to which the plurality professes obeisance.
Nor do the opinions in Furman which indicate a preference for discretionary sentencing in capital cases suggest in the slightest that a mandatory sentencing procedure would be cruel and unusual. The plurality concedes, as it must, that, following Furman, 10 States enacted laws providing for mandatory capital punishment. See State Capital Punishment Statutes Enacted Subsequent to Furman v. Georgia, Congressional Research Service Pamphlet 17-22 (June 19, 1974). These enactments the plurality seeks to explain as due to a wrongheaded reading of the holding in Furman. But this explanation simply does not wash. While those States may be presumed to have preferred their prior systems reposing sentencing discretion in juries or judges, they indisputably preferred mandatory capital punishment to no capital punishment at all. Their willingness to enact statutes providing that penalty is utterly inconsistent with the notion that they regarded mandatory capital sentencing as beyond "evolving standards of decency." The plurality's glib rejection of these legislative decisions as having little weight on the scale which it finds in the Eighth Amendment seems to me more an instance of its desire to save the people from themselves than a conscientious effort to ascertain the content of any "evolving standard of decency."
The second constitutional flaw which the plurality finds in North Carolina's mandatory system is that it has simply "papered over" the problem of unchecked [p314] jury discretion. The plurality states, ante at 302, that
there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes.
The plurality also states, ante at 303, that,
as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first degree murder cases.
The basic factual assumption of the plurality seems to be that, for any given number of first-degree murder defendants subject to capital punishment, there will be a certain number of jurors who will be unwilling to impose the death penalty even though they are entirely satisfied that the necessary elements of the substantive offense are made out.
In North Carolina, jurors unwilling to impose the death penalty may simply hang a jury, or they may so assert themselves that a verdict of not guilty is brought in; in Louisiana, they will have a similar effect in causing some juries to bring in a verdict of guilty of a lesser included offense even though all the jurors are satisfied that the elements of the greater offense are made out. Such jurors, of course, are violating their oath, but such violation is not only consistent with the majority's hypothesis; the majority's hypothesis is bottomed on its occurrence.
For purposes of argument, I accept the plurality's hypothesis; but it seems to me impossible to conclude from it that a mandatory death sentence statute such as North Carolina enacted is any less sound constitutionally than are the systems enacted by Georgia, Florida, and Texas which the Court upholds.
In Georgia, juries are entitled to return a sentence of life, rather than death, for no reason whatever, simply [p315] based upon heir own subjective notions of what is right and what is wrong. In Florida, the judge and jury are required to weigh legislatively enacted aggravating factors against legislatively enacted mitigating factors, and then base their choice between life or death on an estimate of the result of that weighing. Substantial discretion exists here, too, though it is somewhat more canalized than it is in Georgia. Why these types of discretion are regarded by the plurality as constitutionally permissible, while that which may occur in the North Carolina system is not, is not readily apparent. The freakish and arbitrary nature of the death penalty described in the separate concurring opinions of JUSTICES STEWART and WHITE in Furman arose not from the perception that so many capital sentences were being imposed, but from the perception that so few were being imposed. To conclude that the North Carolina system is bad because juror nullification may permit jury discretion, while concluding that the Georgia and Florida systems are sound because they require this same discretion, is, as the plurality opinion demonstrates, inexplicable.
The Texas system much more closely approximates the mandatory North Carolina system which is struck down today. The jury is required to answer three statutory questions. If the questions are unanimously answered in the affirmative, the death penalty must be imposed. It is extremely difficult to see how this system can be any less subject to the infirmities caused by juror nullification which the plurality concludes are fatal to North Carolina s statute. JUSTICES STEWART, POWELL, and STEVENS apparently think they can sidestep this inconsistency because of their belief that one of the three questions will permit consideration of mitigating factors justifying imposition of a life sentence. It is, however, as those Justices recognize, Jurek v. Texas, ante, at 272-273, [p316] far from clear that the statute is to be read in such a fashion. In any event, while the imposition of such unlimited consideration of mitigating factors may conform to the plurality's novel constitutional doctrine that
[a] jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed,
ante at 271, the resulting system seems as likely as any to produce the unbridled discretion which was condemned by the separate opinions in Furman.
The plurality seems to believe, see ante at 303, that provision for appellate review will afford a check upon the instances of juror arbitrariness in a discretionary system. But it is not at all apparent that appellate review of death sentences, through a process of comparing the facts of one case in which a death sentence was imposed with the facts of another in which such a sentence was imposed, will afford any meaningful protection against whatever arbitrariness results from jury discretion. All that such review of death sentences can provide is a comparison of fact situations which must, in their nature, be highly particularized, if not unique, and the only relief which it can afford is to single out the occasional death sentence which, in the view of the reviewing court, does not conform to the standards established by the legislature.
It is established, of course, that there is no right to appellate review of a criminal sentence. McKane v. Durston, 153 U.S. 684 (1894). That question is not at issue here, since North Carolina, along with the other four States whose systems the petitioners are challenging in these cases, provides appellate review for a death sentence imposed in one of its trial courts.
By definition, of course, there can be no separate appellate review of the factual basis for the sentencing decision [p317] in a mandatory system. If it is once established in a fairly conducted trial that the defendant has, in fact, committed the crime in question, the only question as to the sentence which can be raised on appeal is whether a legislative determination that such a crime should be punished by death violates the Cruel and Unusual Punishments Clause of the Eighth Amendment. Here, both petitioners were convicted of first-degree murder, and there is no serious question raised by the plurality that death is not a constitutionally permissible penalty for such a crime.
But the plurality sees another role for appellate review in its description of the reasons why the Georgia, Texas, and Florida systems are upheld, and the North Carolina system struck down. And it is doubtless true that Georgia, in particular, has made a substantial effort to respond to the concerns expressed in Furman, not an easy task considering the glossolalial manner in which those concerns were expressed. The Georgia Supreme Court has indicated that the Georgia death penalty statute requires it to review death sentences imposed by juries on the basis of rough "proportionality." It has announced that it will not sustain, at least at the present time, death penalties imposed for armed robbery, because that penalty is so seldom imposed by juries for that offense. It has also indicated that it will not sustain death penalties imposed for rape in certain fact situations, because the death penalty has been so seldom imposed on facts similar to those situations.
But while the Georgia response may be an admirable one as a matter of policy, it has imperfections, if a failure to conform completely to the dictates of the separate opinions in Furman be deemed imperfections, which the opinion of JUSTICES STEWART, POWELL, and STEVENS does not point out. Although there may be some disagreement [p318] between that opinion and the opinion of my Brother WHITE in Gregg v. Georgia, which I have joined, as to whether the proportionality review conducted by the Supreme Court of Georgia is based solely upon capital sentences imposed, or upon all sentences imposed in cases where a capital sentence could have been imposed by law, I shall assume for the purposes of this discussion that the system contemplates the latter. But this is still far from a guarantee of any equality in sentencing, and is likewise no guarantee against juror nullification. Under the Georgia system, the jury is free to recommend life imprisonment, as opposed to death, for no stated reason whatever. The Georgia Supreme Court cannot know, therefore, when it is reviewing jury sentences for life in capital cases, whether the jurors found aggravating circumstances present, but nonetheless decided to recommend mercy, or instead found no aggravating circumstances at all, and opted for mercy. So the "proportionality" type of review, while it would perhaps achieve its objective if there were no possible factual lacunae in the jury verdicts, will not achieve its objective, because there are necessarily such lacunae.
Identical defects seem inherent in the systems of appellate review provided in Texas and Florida, for neither requires the sentencing authority which concludes that a death penalty is inappropriate to state what mitigating factors were found to be present or whether certain aggravating factors urged by the prosecutor were actually found to be lacking. Without such detailed factual findings JUSTICES STEWART, POWELL, and STEVENS' praise of appellate review as a cure for the constitutional infirmities which they identify seems to me somewhat forced.
Appellate review affords no correction whatever with respect to those fortunate few who are the beneficiaries [p319] of random discretion exercised by juries, whether under an admittedly discretionary system or under a purportedly mandatory system. It may male corrections at one end of the spectrum, but cannot at the other. It is even less clear that any provision of the Constitution can be read to require such appellate review. If the States wish to undertake such an effort, they are undoubtedly free to do so, but surely it is not required by the United States Constitution.
The plurality's insistence on "standards" to "guide the jury in its inevitable exercise of the power to determine which . . . murderers shall live and which shall die" is squarely contrary to the Court's opinion in McGautha v. California, 402 U.S. 183 (1971), written by Mr. Justice Harlan and subscribed to by five other Members of the Court only five years ago. So is the plurality's latter-day recognition, some four years after the decision of the case, that Furman requires "objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death." Its abandonment of stare decisis in this repudiation of McGautha is a far lesser mistake than its substitution of a superficial and contrived constitutional doctrine for the genuine wisdom contained in McGautha. There, the Court addressed the "standardless discretion" contention in this language:
In our view, such force as this argument has derives largely from its generality. Those who have come to grips with the hard task of actually attempting to draft means for channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language [p320] which can be fairly understood and applied by the sentencing authority appear to be tasks which are beyond present human ability.
Thus the British Home Office, which, before the recent abolition of capital punishment in that country, had the responsibility for selecting the cases from England and Wales which should receive the benefit of the Royal Prerogative of Mercy, observed:
The difficulty of defining by any statutory provision the types of murder which ought or ought not to be punished by death may be illustrated by reference to the many diverse considerations to which the Home Secretary has regard in deciding whether to recommend clemency. No simple formula can take account of the innumerable degrees of culpability, and no formula which fails to do so can claim to be just or satisfy public opinion.
1-2 Royal Commission on Capital Punishment, Minutes of Evidence 13 (1949).
402 U.S. at 204-205.
* * * *
In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. The States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision, and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit, rather than expand, the scope of consideration, for no list of circumstances [p321] would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless "boilerplate" or a statement of the obvious that no jury would need.
Id. at 207-208 (citation omitted).
It is also worth noting that the plurality opinion repudiates not only the view expressed by the Court in McGautha, but also, as noted in McGautha, the view which had been adhered to by every other American jurisdiction which had considered the question. See id. at 196 n. 8.
The plurality opinion's insistence, in Part III-C, that, if the death penalty is to be imposed there must be "particularized consideration of relevant aspects of the character and record of each convicted defendant" is buttressed by neither case authority nor reason. Its principal claim to distinction is that it contradicts important parts of Part III-A in the same opinion.
Part III-A, which describes what it conceives to have been society's turning away from the mandatory imposition of the death penalty, purports to express no opinion as to the constitutionality of a mandatory statute for "an extremely narrow category of homicide, such as murder by a prisoner serving a life sentence." See ante at 287 n. 7. Yet if "particularized consideration" is to be required in every case under the doctrine expressed in Part III-C, such a reservation in Part III-A is disingenuous, at best.
None of the cases half-heartedly cited by the plurality in Part III-C comes within a light-year of establishing the proposition that individualized consideration is a constitutional requisite for the imposition of the death penalty. Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51 (1937), upheld against a claim of violation of [p322] the Equal Protection Clause a Pennsylvania statute which made the sentence imposed upon a convict breaking out of a penitentiary dependent upon the length of the term which he was serving at the time of the break. In support of its conclusion that Pennsylvania had not denied the convict equal protection, the Court observed:
The comparative gravity of criminal offenses and whether their consequences are more or less injurious are matters for [the State's] determination. . . . It may inflict a deserved penalty merely to vindicate the law or to deter or to reform the offender or for all of these purposes. For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed, and that there be taken into account the circumstances of the offense, together with the character and propensities of the offender. His past may be taken to indicate his present purposes and tendencies, and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.
Id. at 55.
These words of Mr. Justice Butler, speaking for the Court in that case, and those of Mr. Justice Black in Williams v. New York, 337 U.S. 241 (1949), the other opinion relied on by the plurality, lend no support whatever to the principle that the Constitution requires individualized consideration. This is not surprising, since, even if such a doctrine had respectable support, which it has not, it is unlikely that either Mr. Justice Butler or Mr. Justice Black would have embraced it.
The plurality also relies upon the indisputable proposition that "death is different" for the result which it reaches in Part III-C. But the respects in which death is "different" from other punishment which may be imposed [p323] upon convicted criminals do not seem to me to establish the proposition that the Constitution requires individualized sentencing.
One of the principal reasons why death is different is because it is irreversible; an executed defendant cannot be brought back to life. This aspect of the difference between death and other penalties would undoubtedly support statutory provisions for especially careful review of the fairness of the trial, the accuracy of the factfinding process, and the fairness of the sentencing procedure where the death penalty is imposed. But none of those aspects of the death sentence is at issue here. Petitioners were found guilty of the crime of first-degree murder in a trial the constitutional validity of which is unquestioned here. And since the punishment of death is conceded by the plurality not to be a cruel and unusual punishment for such a crime, the irreversible aspect of the death penalty has no connection whatever with any requirement for individualized consideration of the sentence.
The second aspect of the death penalty which makes it "different" from other penalties is the fact that it is indeed an ultimate penalty, which ends a human life, rather than simply requiring that a living human being be confined for a given period of time in a penal institution. This aspect of the difference may enter into the decision of whether or not it is a "cruel and unusual" penalty for a given offense. But since, in this case, the offense was first-degree murder, that particular inquiry need proceed no further.
The plurality's insistence on individualized consideration of the sentencing, therefore, does not depend upon any traditional application of the prohibition against cruel and unusual punishment contained in the Eighth Amendment. The punishment here is concededly not [p324] cruel and unusual, and that determination has traditionally ended judicial inquiry in our cases construing the Cruel and Unusual Punishments Clause. Trop v. Dulles, 356 U.S. 86"]356 U.S. 86 (1958); 356 U.S. 86 (1958); Robinson v. California, 370 U.S. 660"]370 U.S. 660 (1962); 370 U.S. 660 (1962); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); Wilkerson v. Utah, 99 U.S. 130 (1879). What the plurality opinion has actually done is to import into the Due Process Clause of the Fourteenth Amendment what it conceives to be desirable procedural guarantees where the punishment of death, concededly not cruel and unusual for the crime of which the defendant was convicted, is to be imposed. This is squarely contrary to McGautha, and unsupported by any other decision of this Court.
I agree with the conclusion of the plurality, and with that of MR. JUSTICE WHITE, that death is not a cruel and unusual punishment for the offense of which these petitioners were convicted. Since no member of the Court suggests that the trial which led to those convictions in any way fell short of the standards mandated by the Constitution, the judgments of conviction should be affirmed. The Fourteenth Amendment, giving the fullest scope to its "majestic generalities," Fay v. New York, 332 U.S. 261, 282 (1947), is conscripted, rather than interpreted, when used to permit one, but not another, system for imposition of the death penalty.