|Dawson v. Delaware
581 A.2d 1078, vacated and remanded.
[ Rehnquist ]
[ Blackmun ]
[ Thomas ]
Dawson v. Delaware
Justice THOMAS, dissenting.
To rebut mitigating character evidence introduced by petitioner Dawson at his capital sentencing hearing, the State of Delaware proved that Dawson belonged to the Aryan Brotherhood [p170] prison gang. The Court holds that the gang membership evidence "ha[d] no relevance to the issues being decided in the proceeding," and that admission of the evidence violated the First Amendment. Ante at 160. I respectfully dissent.
Dawson's membership in the Aryan Brotherhood prison gang had relevance at sentencing. Under Delaware law, after a jury finds a statutory aggravating factor, it may consider "all relevant evidence in aggravation or mitigation" relating to either the crime or the "character and propensities" of the defendant. Del.Code Ann., Tit. 11, § 4209(d)(1) (1987). Under this provision, Dawson's character became an issue in determining whether he should receive the death penalty.
To prove his good character, as the Court observes, Dawson introduced evidence that he had acted kindly toward his family, and that he had earned good time credits while in prison. Ante at 162. Dawson also introduced evidence of his membership and participation in various respectable organizations, including the Green Tree Program (described only as a "drug and alcohol program"), Alcoholics Anonymous (not described at all), and certain therapy and counseling groups (also not described at all). App. 79. Dawson did not call any expert witnesses to clarify the nature of these organizations or their activities.
The State attempted to rebut Dawson's mitigating character evidence in part by showing that Dawson also belonged to a prison gang called the Aryan Brotherhood. A stipulation read to the jury explained:
The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons, including Delaware.
Id. at 132. [p171] I do not consider the evidence of Dawson's gang membership irrelevant to his character.
The Court asserts that the gang membership evidence had no relevance, because it did nothing more than indicate Dawson's "abstract" racist "beliefs." Ante at 167. The Court suggests that Dawson's membership in a prison gang would be relevant if the gang had endorsed or committed "unlawful or violent acts" such as drug use, escape, or the murder of other inmates. Ante at 165, 166. Yet, because the State failed to prove the Aryan Brotherhood's activities, the Court reasons, the jury could do no more than infer that Dawson shared the gang's racist beliefs. Ibid. I disagree. In my judgment, a jury reasonably could conclude from Dawson's membership in a prison gang that he had engaged in some sort of forbidden activities while in prison. The evidence also tended to establish future dangerousness, and to rebut Dawson's attempt to show that he was kind to others.
Jurors do not leave their knowledge of the world behind when they enter a courtroom, and they do not need to have the obvious spelled out in painstaking detail. Just as defense counsel may assume when introducing mitigating evidence that a jury understands the nature of a church choir, a softball team, or the Boy Scouts, so too may a prosecutor assume when rebutting this evidence that a jury knows the nature of a prison gang. The concept of a prison gang is not so mysterious that it requires an encyclopedic definition or a greater explanation than any of the other organizations to which Dawson belonged, such as Alcoholics Anonymous or the Green Tree Program. Cf. Jones v. Hamelman, 869 F.2d 1023, 1028 (CA7 1989) (testimony of a purported expert unnecessary to explain a prison gang once the record established its existence); United States Dept. of Justice, Prison Gangs: Their Extent, Nature and Impact on Prisons 10 (1985) (discussing the "extensive" media coverage of prison gangs). [p172]
In stating that Dawson belonged to a prison gang, the stipulation implied much more than that he shared the gang's abstract racist creed; it indicated that Dawson had engaged in prison gang activities, and that he had the character of a person who engages in these activities.
One of the distinguishing characteristics of the prison gang is the virtual absence of any non-criminal, non-deviant activities. Gang members engage in some institutional pastimes, weight lifting being one of the more notable, but in general their activities are criminal or deviant in nature. The gang member is completely immersed in being a career prison gangster, leaving little time and less inclination for other than asocial behavior.
U.S. Dept. of Justice, supra, at x-xi. Denying that Dawson's gang membership told the jury anything about his activities, tendencies, and traits -- his "character" -- ignores reality. What Judge Easterbrook remarked when others attempted to distinguish gang membership from gang activities, someone reading the Court's opinion might say today:
Who do they think they are fooling? What elements of "membership" -- as opposed to "activity" -- take place [in the prison]? What are prison gangs for, except to engage in forbidden "activity?" Surely [they] do not believe that prison gangs meet every month to discuss The Critique of Pure Reason and debate how Stanley Tigerman's buildings differ from those of the Bauhaus school. Gangs affiliate for mutual support, but not the kind contemplated by the National Labor Relations Act.
David K. v. Lane, 839 F.2d 1265, 1278 (CA7 1988) (concurring opinion). In my view, the stipulation was relevant to Dawson's character because it explained that the Aryan Brotherhood was a prison gang, and that Dawson was a member. That evidence, I submit, supports an inference that, while in prison, [p173] Dawson engaged in the kind of unlawful activity mentioned by the Court. [n1]
The description of the Aryan Brotherhood as a "racist" prison gang conveyed additional information about Dawson's character. In Barclay v. Florida, 463 U.S. 939 (1983), the plurality found it relevant that a black gang conspired not merely to commit crimes, but to commit them against white persons out of racial hatred. See id. at 949. Even if Dawson's white racist prison gang does not advocate "the murder of fellow inmates," ante at 165, a jury reasonably could infer that its members in one way or another act upon their racial prejudice. The stipulation itself makes clear that the Aryan Brotherhood does not exist merely to facilitate formulation of abstract racist thoughts, but to "respon[d]" to gangs of racial minorities. The evidence thus tends to establish that Dawson has not been "a well-behaved and well-adjusted prisoner," Skipper v. South Carolina, 476 U.S. 1, 4 (1986), which [p174] itself is an indication of future dangerousness, see Franklin v. Lynaugh, 487 U.S. 164, 178 (1988) (plurality opinion); id. at 186 (O'CONNOR, J., concurring in judgment).
The stipulation also tend to rebut Dawson's evidence of good character. In capital cases, we have held that the sentence imposed should reflect a "‘reasoned moral response'" not only to the crime, but also to the "‘background'" and "‘character'" of the defendant himself. See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring)). In determining Dawson's "personal culpability," Penry, supra, 492 U.S. at 327, the jury surely would want to know about the various activities, traits, and tendencies that distinguish him as a "uniquely individual human bein[g]," Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Dawson introduced mitigating character evidence that he had acted kindly towards his family. The stipulation tended to undercut this showing by suggesting that Dawson's kindness did not extend to members of other racial groups. Although we do not sit in judgment of the morality of particular creeds, we cannot bend traditional concepts of relevance to exempt the antisocial.
The Court's opinion suggests that the Constitution now imposes a double standard for determining relevance: a standard easy for defendants to satisfy, but difficult for prosecutors. Under Eddings v. Oklahoma, 455 U.S. 104"]455 U.S. 104 (1982), and 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), a capital defendant has a right to introduce all relevant mitigating evidence. Capital defendants, as a result, regularly introduce character evidence that allows juries to consider their abstract beliefs and associational rights. Dawson, for example, introduced evidence that he associated with Alcoholics Anonymous and other groups. Other defendants have introduced comparable evidence regarding their religious practice and fraternal organizations. See, e.g., Jordan [p175] v. State, 518 So.2d 1186, 1188 (Miss.1987) (membership in a church); Sivak v. State, 112 Idaho 197, 236, 731 P.2d 192, 231 (1986) (same); Deputy v. State, 500 A.2d 581, 598 (Del.1986) (religious rebirth); People v. Belmontes, 45 Cal.3d 744, 797, 755 P.2d 310, 340 (1988) (same); Evans v. McCotter, 790 F.2d 1232, 1242, and n. 10 (CA5 1986) (conversion to Christianity); State v. Beuke, 38 Ohio St.3d 29, 43, 526 N.E.2d 274, 289 (1988) (former membership in the Cub Scouts). I see no way to hold that this evidence has relevance, but that Dawson's gang membership does not.
A double standard for determining relevance may distort the picture presented to the jury. In this case, Dawson himself chose to introduce evidence of certain good character traits. Unless the State had responded with evidence of other, bad traits, the jury could not possibly have made a fair and balanced determination. Membership in Alcoholics Anonymous might suggest a good character, but membership in the Aryan Brotherhood just as surely suggests a bad one. The jury could not have assessed Dawson's overall character without both.
Just last term, in Payne v. Tennessee, 501 U.S. 808 (1991), the Court condemned a similar distortion. Overruling Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), we held that the Eighth Amendment does not generally prohibit the introduction of victim impact evidence. See Payne, supra, at 827. We reasoned that allowing the jury to consider the defendant, but not the victim, would create an unbalanced picture. Quoting a dissenting opinion in Booth, we stated:
"[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that, just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family."
Payne, supra, at 827 (quoting Booth, 482 U.S. at 517 (WHITE, J., dissenting)); see also 482 U.S. at 520 [p176] (SCALIA, J., dissenting) ("Many citizens have found one-sided, and hence unjust, the criminal trial in which a parade of witnesses comes forth to testify to the pressures beyond normal human experience that drove the defendant to commit his crime. . . . Perhaps these sentiments do not sufficiently temper justice with mercy, but that is a question to be decided through the democratic processes of a free people, and not by the decrees of this Court"). Whatever distortion was produced in requiring an exclusive focus on the defendant's character, at least nothing in Booth prevented the jury -- as does today's decision -- from fairly and fully assessing that character.
The Court acknowledges that Delaware could have avoided any First Amendment problem simply by presenting evidence that proved something more than Dawson's abstract beliefs. Ante at 167. For the reasons that I have stated, I believe that Delaware has made such a showing. I therefore see no First Amendment violation under the Court's analysis. The Court, however, goes on to make several further assertions about the First Amendment that I find troubling and unnecessary in this case.
Both Dawson and the State, as noted above, had a right to develop the issue of "character" at the sentencing proceeding. See Del.Code Ann., Tit. 11, § 4209(d)(1) (1987); Eddings, 455 U.S. at 113-114. In applying the First Amendment, however, the Court declines to decide whether abstract beliefs may constitute a portion of character. "[W]hatever label is given to the evidence," the Court asserts, "we conclude that Dawson's First Amendment rights were violated . . . in this case. . . . " Ante at 167. As a consequence, to the extent that abstract beliefs make up part of a person's character, the decision today limits the aspects of character that sentencing authorities may consider. [p177]
We long have held that the Constitution permits courts and juries to consider character evidence in sentencing proceedings. See Williams v. New York, 337 U.S. 241, 247 (1949). Until today, we have never hinted that the First Amendment limits the aspects of a defendant's character that they may consider. To the contrary, we have emphasized that the sentencing authority may
appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.
United States v. Tucker, 404 U.S. 443, 446 (1972).
In Williams, for example, we upheld a New York law that encouraged the sentencing judge to consider evidence about the defendant's "past life, health, habits, conduct, and mental and moral propensities," 337 U.S. at 245, a phrase easily broad enough to encompass a substantial amount of First Amendment activity. Writing for the Court, Justice Black specifically identified religion and interests as sentencing considerations that may "give the sentencing judge a composite picture of the defendant." Id. at 250, n. 15.
More recently, in Franklin v. Lynaugh, all five Members of the Court who addressed the issue agreed that religious activity may bear upon a defendant's character. See 487 U.S. at 186 (O'CONNOR, J., concurring in judgment) ("Evidence of . . . religious devotion might demonstrate positive character traits"); id. at 190 (STEVENS, J., dissenting) ("Evidence of . . . regular church attendance" is relevant to character). [n2] Although the opinions in Franklin endorsed [p178] consideration of religious activity as a mitigating factor, the endorsement necessarily disfavors abstention from religious activity, which the First Amendment also protects.
The Court nowhere explains why courts and juries may consider some First Amendment protected activities when assessing character, but they cannot consider others. Today's decision, moreover, does not define the boundaries of permissible inquiry into character. If the Court means that no First Amendment protected activity "ca[n] be viewed as relevant ‘bad' character evidence in its own right," ante at 168, then today's decision represents a dramatic shift in our sentencing jurisprudence.
Once the Court concludes that the gang membership evidence "has no relevance to the issues being decided in the [sentencing] proceeding," ante at 160, I also have difficulty seeing what the First Amendment adds to the analysis. If the Court considers the evidence irrelevant, the problem is not that Delaware law bases the sentencing decision on impermissible issues, but rather that Dawson may not have received a fair trial on the permissible issues in the proceeding. The Due Process Clause, not the First Amendment, traditionally has regulated questions about the improper admission of evidence.
As we stated in Chambers v. Florida, 309 U.S. 227 (1940), the requirement of Due Process always has protected "the weak, or . . . helpless political, religious, or racial minorities and those who differed" by ensuring that
no man's life, liberty or property be forfeited as criminal punishment for violation of [the] law until there ha[s] been a charge fairly made [p179] and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.
Id. at 236-237. We have made clear, in particular, that, when a state court admits evidence that is
so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.
Payne v. Tennessee, 501 U.S. at 825; see Darden v. Wainwright, 477 U.S. 168, 179-183 (1986).
Our decision in Schware v. Board of Bar Examiners of N.M., 353 U.S. 232 (1957), which the Court incorrectly cites, illustrates the point. In Schware, the New Mexico Supreme Court denied an applicant admission to the bar on grounds that he lacked good moral character. Evidence showed that the applicant had belonged to the Communist Party 15 years earlier. The Court erroneously states that Schware held that admitting proof of the applicant's membership in the Communist Party violated the First Amendment. Ante at 168. Schware, in fact, did not decide that admitting the Communist Party evidence abridged any right of free political association. See 353 U.S. at 243, n. 13. It held, instead, that the state court erred in admitting the Communist Party evidence, because it had no relevance to the applicant's moral character after so many years. See id. at 246. Due process, the Court concluded, prohibited the state court to find the applicant morally unfit to practice law without any relevant evidence. See id. at 247.
Applying familiar evidentiary standards in Dawson's case, the trial judge recognized that the "real issue" in admitting the gang membership evidence was whether its "probative value is outweighed by the danger of unfair prejudice." App. 52. The Delaware Supreme Court, likewise, examined the record to determine whether the gang membership evidence "improperly appeal[ed] to the juror's passions and prejudices concerning race, religion, or political affiliation." 581 A.2d 1078, 1103 (1990). The standards employed by these courts went further than the fundamental unfairness [p180] standard stated in Payne, and therefore satisfied the requirements of Due Process. Dawson has presented no convincing argument, based on the record as a whole, that the courts misapplied these standards to the facts of his case. For these reasons, I would affirm.
1. Indeed, in the case of an organization claiming to be part of the Aryan Brotherhood, the jury very well may not have needed even the explanation that the stipulation provided. Courts regularly have noticed that the Aryan Brotherhood is "a singularly vicious prison gang," United States v. Fountain, 840 F.2d 509, 516 (CA7 1988) (Easterbrook, J.) (citing other cases), that it has a "hostility to black inmates," United States v. Silverstein, 732 F.2d 1338, 1341 (CA7 1984) (Posner, J.) (citing secondary sources), and that it originated "during the prison racial violence of the 1960's," United States v. Mills, 704 F.2d 1553, 1555 (CA11 1983). The Aryan Brotherhood gangs also have received substantial attention in both popular and scholarly writings. See, e.g., Matthee, Stronger Prison Gang Influence Cited, L.A. Times, July 10, 1987, Part 1, p. 34, col. 1 (describing members of the Aryan Brotherhood as "among the most violent prisoners"); Goodgame, Mayhem in the Cellblocks, Time, Aug. 12, 1985, p. 20 (describing the Aryan Brotherhood's "inflexible ethic of vengeance"); J. Fox, Organizational and Racial Conflict in Maximum-Security Prisons 136 (1982) (identifying the Aryan Brotherhood as an "extremist" organization like the Ku Klux Klan); United States Dept. of Justice, Prison Gangs: Their Extent, Nature and Impact on Prisons 65-190 (1985) (discussing the activities of the Aryan Brotherhood in the prisons of fourteen States). Even if the jury were unaware of the Aryan Brotherhood in particular, it was surely aware of the nature of prison gangs generally.
2. In federal court, Federal Rule of Criminal Procedure 32(c)(2)(A) permits the presentence report following a criminal conviction to contain "information about the history and characteristics of the defendant . . . that may be helpful in imposing sentence." The Advisory Committee note to the original version of this rule refers to a report that we endorsed in Williams v. New York, 337 U.S. 241, 250, n. 15 (1949): Administrative Office of the United States Courts, The Presentence Investigation Report, Pub. No. 101 (1943). This report explains:
Centuries of human experience have given testimony to the dynamic qualities of religion. Religion may be a significant, decisive factor in enabling an individual to overcome his difficulties.