Yale University Professor Stephen B. Bright · All cases of homicide of every category are ... aggravating circumstance, to consider multiple aggravating circumstances any more significant

CAPITAL PUNISHMENT:RACE, POVERTY & DISADVANTAGE

Yale UniversityProfessor Stephen B. Bright

Class Three - Part Two

AGGRAVATING

CIRCUMSTANCES

Walter ZANT, Wardenv.

Alpha Otis O’Daniel STEPHENS

United States Supreme Court462 U.S. 862, 103 S.Ct. 2733 (1983).

Stevens, J., delivered the opinion of the Court.White, J., filed an opinion concurring in part andconcurring in the judgment. Rehnquist, J., filed anopinion concurring in the judgment. Marshall, J.,filed a dissenting opinion, in which Brennan, J.,joined.

Justice STEVENS delivered the opinion of theCourt.

The question presented is whether respondent’sdeath penalty must be vacated because one of thethree statutory aggravating circumstances foundby the jury was subsequently held to be invalid bythe Supreme Court of Georgia, although the othertwo aggravating circumstances were specificallyupheld. The answer depends on the function ofthe jury’s finding of an aggravating circumstanceunder Georgia’s capital sentencing statute, and onthe reasons that the aggravating circumstance atissue in this particular case was found to beinvalid.

* * *

The trial judge instructed the jury that under thelaw of Georgia “every person found guilty ofMurder shall be punished by death or by

imprisonment for life, the sentence to be fixed bythe jury trying the case.” He explained that thejury was authorized to consider all of the evidencereceived during the trial as well as all facts andcircumstances presented in extenuation,mitigation, or aggravation during the sentencingproceeding. He then stated:

You may consider any of the following statutoryaggravating circumstances which you find aresupported by the evidence. One, the offense ofMurder was committed by a person with a priorrecord of conviction for a Capital felony, or theoffense of Murder was committed by a personwho has a substantial history of seriousassaultive criminal convictions. Two, theoffense of Murder was outrageously orwantonly vile, horrible or inhuman in that itinvolved torture, depravity of mind or anaggravated battery to the victim. Three, theoffense of Murder was committed by a personwho has escaped from the lawful custody of apeace officer or place of lawful confinement.These possible statutory circumstances arestated in writing and will be out with you duringyour deliberations on the sentencing phase ofthis case. They are in writing here, and I shallsend this out with you. If the jury verdict onsentencing fixes punishment at death byelectrocution you shall designate in writing,signed by the foreman, the aggravatingcircumstances or circumstance which you foundto have been proven beyond a reasonable doubt. Unless one or more of these statutoryaggravating circumstances are proved beyond areasonable doubt you will not be authorized tofix punishment at death.

The jury followed the Court’s instruction and

Class 3 - Part 2 Aggravating Circumstances 1 Prof. Bright - Capital Punishment

imposed the death penalty. It designated inwriting that it had found the aggravatingcircumstances described as “One” and “Three” inthe judge’s instruction. It made no such findingwith respect to “Two”. * * *

While [Stephens’] appeal was pending, theGeorgia Supreme Court held * * * that theaggravating circumstance described in the secondclause of (b)(1) – “a substantial history of seriousassaultive criminal convictions” – wasunconstitutionally vague. Because such a findinghad been made by the jury in this case, theGeorgia Supreme Court, on its own motion,considered whether it impaired respondent’s deathsentence. It concluded that the two otheraggravating circumstances adequately supportedthe sentence.

After the Federal District Court had denied apetition for habeas corpus, the United States Courtof Appeals for the Fifth Circuit [. . .] held that thedeath penalty was invalid because one of theaggravating circumstances found by the jury waslater held unconstitutional.

* * *

We granted Warden Zant’s petition forcertiorari.

* * * Although the Georgia Supreme Court hadconsistently stated that the failure of oneaggravating circumstance does not invalidate adeath sentence that is otherwise adequatelysupported, we concluded that an exposition of thestate-law premises for that view would assist inframing the precise federal constitutional issuespresented by the Court of Appeals’ holding. Wetherefore sought guidance from the GeorgiaSupreme Court pursuant to Georgia’s statutorycertification procedure. * * *

* * * The [Georgia Supreme] Court thenexplained the state-law premises for its treatmentof aggravating circumstances by analogizing theentire body of Georgia law governing homicidesto a pyramid. It explained:

All cases of homicide of every category arecontained within the pyramid. Theconsequences flowing to the perpetratorincrease in severity as the cases proceed fromthe base of the apex, with the death penaltyapplying only to those few cases which arecontained in the space just beneath the apex. To reach that category a case must passthrough three planes of division between thebase and the apex.

The first plane of division above the baseseparates from all homicide cases those whichfall into the category of murder. This plane isestablished by the legislature in statutesdefining terms such as murder, voluntarymanslaughter, involuntary manslaughter, andjustifiable homicide. In deciding whether agiven case falls above or below this plane, thefunction of the trier of facts is limited tofinding facts. The plane remains fixed unlessmoved by legislative act.

The second plane separates from all murdercases those in which the penalty of death is apossible punishment. This plane is establishedby statutory definitions of aggravatingcircumstances. The function of the factfinderis again limited to making a determination ofwhether certain facts have been established. Except where there is treason or aircrafthijacking, a given case may not move abovethis second plane unless at least one statutoryaggravating circumstance exists.

The third plane separates, from all cases inwhich a penalty of death may be imposed,those cases in which it shall be imposed. There is an absolute discretion in the factfinderto place any given case below the plane andnot impose death. The plane itself isestablished by the factfinder. In establishingthe plane, the factfinder considers all evidencein extenuation, mitigation and aggravation ofpunishment. * * * There is a final limitationon the imposition of the death penalty restingin the automatic appeal procedure: This courtdetermines whether the penalty of death wasimposed under the influence of passion,


prejudice, or any other arbitrary factor; whether the statutory aggravatingcircumstances are supported by the evidence; and whether the sentence of death is excessiveor disproportionate to the penalty imposed insimilar cases. * * * Performance of thisfunction may cause this court to remove a casefrom the death penalty category but can neverhave the opposite result.

The purpose of the statutory aggravatingcircumstances is to limit to a large degree, butnot completely, the factfinder’s discretion. Unless at least one of the ten statutoryaggravating circumstances exists, the deathpenalty may not be imposed in any event. Ifthere exists at least one statutory aggravatingcircumstance, the death penalty may beimposed but the factfinder has a discretion todecline to do so without giving any reason. ** * In making the decision as to the penalty,the factfinder takes into consideration allcircumstances before it from both theguilt-innocence and the sentence phases of thetrial. These circumstances relate both to theoffense and the defendant.

A case may not pass the second plane intothat area in which the death penalty isauthorized unless at least one statutoryaggravating circumstance is found. However,this plane is passed regardless of the number ofstatutory aggravating circumstances found, solong as there is at least one. Once beyond thisplane, the case enters the area of thefactfinder’s discretion, in which all the factsand circumstances of the case determine interms of our metaphor, whether or not the casepasses the third plane and into the area inwhich the death penalty is imposed.

* * *

In Georgia, unlike some other States, the juryis not instructed to give any special weight to anyaggravating circumstance, to consider multipleaggravating circumstances any more significantthan a single such circumstance, or to balanceaggravating against mitigating circumstances

pursuant to any special standard. Thus, inGeorgia, the finding of an aggravatingcircumstance does not play any role in guiding thesentencing body in the exercise of its discretion,apart from its function of narrowing the class ofpersons convicted of murder who are eligible forthe death penalty. For this reason, respondentargues that Georgia’s statutory scheme is invalidunder the holding in Furman v. Georgia.

* * *

[Stephens] argues that the mandate of Furmanis violated by a scheme that permits the jury toexercise unbridled discretion in determiningwhether the death penalty should be imposed afterit has found that the defendant is a member of theclass made eligible for that penalty by statute. Butthat argument could not be accepted withoutoverruling our specific holding in Gregg. For theCourt approved Georgia’s capital sentencingstatute even though it clearly did not channel thejury’s discretion by enunciating specific standardsto guide the jury’s consideration of aggravatingand mitigating circumstances.

* * *

Our cases indicate, then, that statutoryaggravating circumstances play a constitutionallynecessary function at the stage of legislativedefinition: they circumscribe the class of personseligible for the death penalty. But theConstitution does not require the jury to ignoreother possible aggravating factors in the processof selecting, from among that class, thosedefendants who will actually be sentenced todeath.

The Georgia scheme provides for categoricalnarrowing at the definition stage, and forindividualized determination and appellate reviewat the selection stage. We therefore remainconvinced, as we were in 1976, that the structureof the statute is constitutional. Moreover, thenarrowing function has been properly achieved inthis case by the two valid aggravatingcircumstances upheld by the Georgia SupremeCourt – that respondent had escaped from lawful


confinement, and that he had a prior record ofconviction for a capital felony. These two findingsadequately differentiate this case in an objective,evenhanded, and substantively rational way fromthe many Georgia murder cases in which the deathpenalty may not be imposed. Moreover, theGeorgia Supreme Court in this case reviewed thedeath sentence to determine whether it wasarbitrary, excessive, or disproportionate. Thus theabsence of legislative or court-imposed standardsto govern the jury in weighing the significance ofeither or both of those aggravating circumstancesdoes not render the Georgia capital sentencingstatute invalid as applied in this case.

* * *

Justice MARSHALL, with whom JusticeBRENNAN joins, dissenting.

* * * Today the Court upholds a death sentencethat was based in part on a statutory aggravatingcircumstance which the State concedes was soamorphous that it invited “subjectivedecision-making without . . . minimal, objectiveguidelines for its application.” In order to reachthis surprising result, the Court embraces thetheory, which it infers from the Georgia SupremeCourt response to this Court’s certified question,that the only function of statutory aggravatingcircumstances in Georgia is to screen out at thethreshold defendants to whom none of the 10circumstances applies. According to this theory,once one of the 10 statutory factors has beenfound, they drop out of the picture entirely andplay no part in the jury’s decision whether tosentence the defendant to death. Relying on this“threshold” theory, the Court concludes that thesubmission of the unconstitutional statutory factordid not prejudice respondent.

* * *

Today we learn for the first time that the Courtdid not mean what it said in Gregg v. Georgia.We now learn that the actual decision whether adefendant lives or dies may still be left to theunfettered discretion of the jury. Although wewere assured in Gregg that sentencing discretion

was “to be exercised by clear and objectivestandards,” we are now told that the State need donothing whatsoever to guide the jury’s ultimatedecision whether to sentence a defendant to deathor spare his life.

Under today’s decision all the State has to dois require the jury to make some threshold finding. Once that finding is made, the jurors can be leftcompletely at large, with nothing to guide thembut their whims and prejudices. They need noteven consider any statutory aggravatingcircumstances that they have found to beapplicable. Their sentencing decision is to be theproduct of their discretion and of nothing else.

If this is not a scheme based on “standardlessjury discretion,” Gregg v. Georgia, 428 U.S., at195, n. 47, I do not know what is. Today’sdecision makes an absolute mockery of thisCourt’s precedents concerning capital sentencingprocedures. There is no point in requiring Statelegislatures to identify specific aggravatingcircumstances if sentencers are to be left free toignore them in deciding which defendants are todie. If this is all Gregg v. Georgia stands for, theStates may as well be permitted to reenact thestatutes that were on the books before Furman.

The system of discretionary sentencing that theCourt approves today differs only in form fromthe capital sentencing procedures that this Courtheld unconstitutional more than a decade ago. The only difference between Georgia’spre-Furman capital sentencing scheme and the“threshold” theory that the Court embraces todayis that the unchecked discretion previouslyconferred in all cases of murder is now conferredin cases of murder with one statutory aggravatingcircumstance. But merely circumscribing thecategory of cases eligible for the death penaltycannot remove from constitutional scrutiny theprocedure by which those actually sentenced todeath are selected.

* * *

* * * It is patently unfair to assume that thejury that sentenced respondent somehow


understood that statutory aggravatingcircumstances were to receive no special weightand were not to be balanced against mitigatingcircumstances. Respondent is “entitled to have thevalidity of [his sentence] appraised onconsideration of the case as it was tried and as theissues were determined in the trial court,” * * *not on a theory that has been adopted for the firsttime after the fact.

* * *

* * * [T]his Court’s decisions establish that theactual determination whether a defendant shalllive or die – and not merely the threshold decisionwhether he is eligible for a death sentence – mustbe guided by clear and objective standards. Thefocus of the sentencer’s attention must be directedto specific factors whose existence ornonexistence can be determined with reasonablecertainty. * * *

Lowenfield v. Phelps

In Lowenfield v. Phelps, 484 U.S. 231 (1988),the Court rejected the contention that the EighthAmendment was violated when an aggravatingcircumstance found at the penalty phaseduplicated an element of the crime of which thedefendant was convicted at the guilt phase. Lowenfield was convicted of three counts of firstdegree murder. An essential element of first-degree murder, set out in the Louisiana statutes,was that the defendant intended “to kill or inflictgreat bodily harm upon more than one person.” After convicting Lowenfield of first degreemurder, the jury imposed the death penaltyfinding as the sole aggravating circumstance thathe “knowingly created a risk of death or greatbodily harm to more than one person.”

Lowenfield asserted that because the soleaggravating circumstance found by the jury phasewas identical to an element of the crime of whichhe was convicted, the jury at the sentencing phasewas free merely to repeat its findings made in theguilt phase, and thus not narrow in the sentencingphase the class of death-eligible murderers. TheCourt, in an opinion by Chief Justice Rehnquist,

held:

The use of “aggravating circumstances” isnot an end in itself, but a means of genuinelynarrowing the class of death-eligible personsand thereby channeling the jury’s discretion. We see no reason why this narrowing functionmay not be performed by jury findings at eitherthe sentencing phase of the trial or the guiltphase. Our opinion in Jurek v. Texas,establishes this point.

After discussing how Texas had narrowed thoseeligible for the death penalty by its definition ofcapital murder – decided by the jury at the guiltphase – and finding that Louisiana’s statutesregarding homicide operated in a similar manner,the Chief Justice continued:

* * * [T]he narrowing function required fora regime of capital punishment may beprovided in either of these two ways: Thelegislature may itself narrow the definition ofcapital offenses, as Texas and Louisiana havedone, so that the jury finding of guilt respondsto this concern, or the legislature may morebroadly define capital offenses and provide fornarrowing by jury findings of aggravatingcircumstances at the penalty phase. * * *

Here, the “narrowing function” wasperformed by the jury at the guilt phase whenit found defendant guilty of three counts ofmurder under the provision that “the offenderhas a specific intent to kill or to inflict greatbodily harm upon more than one person.” Thefact that the sentencing jury is also required tofind the existence of an aggravatingcircumstance in addition is no part of theconstitutionally required narrowing process,and so the fact that the aggravatingcircumstance duplicated one of the elements ofthe crime does not make this sentenceconstitutionally infirm. There is no questionbut that the Louisiana scheme narrows theclass of death-eligible murderers and then atthe sentencing phase allows for theconsideration of mitigating circumstances andthe exercise of discretion. The Constitution


requires no more.

Justice Marshall, joined by Justices Brennanand Stevens, dissented, stating:

[N]arrowing the class of death eligibleoffenders is not “an end in itself” any morethan aggravating circumstances are. Rather, asour cases have emphasized consistently, thenarrowing requirement is meant to channel thediscretion of the sentencer. It forces the capitalsentencing jury to approach its task in astructured, step-by-step way, first determiningwhether a defendant is eligible for the deathpenalty and then determining whether all of thecircumstances justify its imposition.

* * *

* * * [T]he application of the Louisianasentencing scheme in cases like this one, wherethere is a complete overlap betweenaggravating circumstances found at thesentencing phase and elements of the offensepreviously found at the guilt phase, violatesconstitutional principles in ways that willinevitably tilt the sentencing scales toward theimposition of the death penalty. The State willhave an easier time convincing a jury beyonda reasonable doubt to find a necessary elementof a capital offense at the guilt phase of a trialif the jury is unaware that such a finding willmake the defendant eligible for the deathpenalty at the sentencing phase. Then the Statewill have an even easier time arguing for theimposition of the death penalty, because it canremind the jury at the sentencing phase, as itdid in this case, that the necessary aggravatingcircumstances already have been establishedbeyond a reasonable doubt. The State thusenters the sentencing hearing with the juryalready across the threshold of deatheligibility, without any awareness on the jury’spart that it had crossed that line.

Ending Arbitrariness?Aggravating circumstances such as murder in

the commission of another felony do no narrowthose sentenced to death to the worst of theworst. Prosecutorial discretion from one judicial1

district to the next makes it possible that anindividual who is accused of murder in onedistrict may be significantly more likely to becharged with a capital offense than if he or shecommitted the crime in another district. Even if2

a prosecutor decides to charge a capital offense,the case may be resolved with a plea bargain witha sentence of life imprisonment (usually withoutthe possibility of release or parole) based onfactors such as the strength of the case, publicopinion, the wishes of the victim’s family,whether the defendant is willing to cooperate inanother trial, and other factors.

There are other factors as well, includingwhether the broad “catch-all” factors, such as“heinous, atrocious and cruel” or “vile, horribleand inhuman” narrow the sentencer’s discretionsufficiently to prevent arbitrariness. We turn tothat in the following section.

1. See, e.g., Steven F. Shatz, The Eighth Amendment,

the Death Penalty, and Ordinary Robbery-Burglary

Murders: A California Case Study, 59 FLA. L. REV. 719

(2007). (detailing how the overbroad robbery-murder

statute results in arbitrary imposition of the death

penalty and does not narrow to the worst of the worst).

2. See Andrew Ditchfield, Challenging the Interstate

Disparities in the Application of Capital Punishment

Statutes, 95 GEO . L.J. 801, 810-20 (2007).


Vagueness and Overbreadth

Challenges to Aggravating

Circumstances

There is, of course, something distastefuland absurd in the very project of parsingthis lexicon of death. But as long as we arein the death business, we shall be in theparsing business as well.

- Justice Harry A. Blackmun, dissenting

in Arave v. Creech, 507 U.S. 463, 489 (1993)

Robert Franklin GODFREY, Petitioner,v.

State of GEORGIA.

Supreme Court of the United States446 U.S. 420, 100 S.Ct. 1759 (1980).

Stewart, J., announced the judgment of theCourt and delivered an opinion, in whichBlackmun, Powell, and Stevens, JJ., joined. Marshall, J., concurred in the judgment and filedan opinion in which Brennan, J., joined. Burger,C.J., dissented and filed an opinion. White, J.,dissented and filed an opinion in whichRehnquist, J., joined.

Mr. Justice STEWART announced thejudgment of the Court and delivered an opinion,in which Mr. Justice BLACKMUN, Mr. JusticePOWELL, and Mr. Justice STEVENS joined.

Under Georgia law, a person convicted ofmurder may be sentenced to death if it is foundbeyond a reasonable doubt that the offense “wasoutrageously or wantonly vile, horrible orinhuman in that it involved torture, depravity ofmind, or an aggravated battery to the victim.” Ga.Code § 27- 2534.1(b)(7) (1978). * * *

* * * The issue now before us is whether, inaffirming the imposition of the sentences of deathin the present case, the Georgia Supreme Courthas adopted such a broad and vague constructionof the § (b)(7) aggravating circumstance as toviolate the Eighth and Fourteenth Amendments to

the United States Constitution.

IOn a day in early September in 1977, the

petitioner and his wife of 28 years had a heatedargument in their home. During the course of thisaltercation, the petitioner, who had consumedseveral cans of beer, threatened his wife with aknife and damaged some of her clothing. At thispoint, the petitioner’s wife declared that she wasgoing to leave him, and departed to stay withrelatives. That afternoon she went to a Justice ofthe Peace and secured a warrant charging thepetitioner with aggravated assault. A few dayslater, while still living away from home, she filedsuit for divorce. Summons was served on thepetitioner, and a court hearing was set on a datesome two weeks later. Before the date of thehearing, the petitioner on several occasions askedhis wife to return to their home. Each time hisefforts were rebuffed. At some point during thisperiod, his wife moved in with her mother. Thepetitioner believed that his mother-in-law wasactively instigating his wife’s determination not toconsider a possible reconciliation.

In the early evening of September 20,according to the petitioner, his wife telephonedhim at home. Once again they argued. * * * Theconversation was terminated after she said thatshe would call back later. This she did in an houror so. The ensuing conversation was, according tothe petitioner’s account, even more heated thanthe first. His wife reiterated her stand thatreconciliation was out of the question, said thatshe still wanted all proceeds from the sale of theirhouse, and mentioned that her mother wassupporting her position. Stating that she saw nofurther use in talking or arguing, she hung up.

At this juncture, the petitioner got out hisshotgun and walked with it down the hill from hishome to the trailer where his mother-in-law lived.Peering through a window, he observed his wife,his mother-in-law, and his 11-year-old daughterplaying a card game. He pointed the shotgun at hiswife through the window and pulled the trigger.The charge from the gun struck his wife in theforehead and killed her instantly. He proceeded


into the trailer, striking and injuring his fleeingdaughter with the barrel of the gun. He then firedthe gun at his mother-in-law, striking her in thehead and killing her instantly.

The petitioner then called the local sheriff’soffice, identified himself, said where he was,explained that he had just killed his wife andmother-in-law, and asked that the sheriff comeand pick him up. Upon arriving at the trailer, thelaw enforcement officers found the petitionerseated on a chair in open view near the driveway.He told one of the officers that “they’re dead, Ikilled them” and directed the officer to the placewhere he had put the murder weapon. Later thepetitioner told a police officer: “I’ve done ahideous crime, . . . but I have been thinking aboutit for eight years . . . I’d do it again.”

The petitioner was subsequently indicted ontwo counts of murder and one count of aggravatedassault. He pleaded not guilty and relied primarilyon a defense of temporary insanity at his trial. Thejury returned verdicts of guilty on all three counts.

The sentencing phase of the trial was heldbefore the same jury. No further evidence wastendered, but counsel for each side madearguments to the jury. Three times during thecourse of his argument, the prosecutor stated thatthe case involved no allegation of “torture” or ofan “aggravated battery.” When counsel hadcompleted their arguments, the trial judgeinstructed the jury orally and in writing on thestandards that must guide them in imposingsentence. Both orally and in writing, the judgequoted to the jury the statutory language of the §(b)(7) aggravating circumstance in its entirety.

The jury imposed sentences of death on both ofthe murder convictions. As to each, the juryspecified that the aggravating circumstance theyhad found beyond a reasonable doubt was “thatthe offense of murder was outrageously orwantonly vile, horrible and inhuman.”

* * *

The Georgia Supreme Court affirmed * * *. [It]

rejected the petitioner’s contention that § (b)(7) isunconstitutionally vague. The court noted thatGeorgia’s death penalty legislation had beenupheld in Gregg v. Georgia, and cited its priordecisions upholding § (b)(7) in the face of similarvagueness challenges. As to the petitioner’sargument that the jury’s phraseology was, as amatter of law, an inadequate statement of § (b)(7),the court responded by simply observing that thelanguage “was not objectionable.” The courtfound no evidence that the sentence had been“imposed under the influence of passion,prejudice, or any other arbitrary factor,” held thatthe sentence was neither excessive nordisproportionate to the penalty imposed in similarcases, and stated that the evidence supported thejury’s finding of the § (b)(7) statutory aggravatingcircumstance. Two justices dissented.

IIIn Furman v. Georgia, the Court held that the

penalty of death may not be imposed undersentencing procedures that create a substantialrisk that the punishment will be inflicted in anarbitrary and capricious manner. Gregg v.Georgia reaffirmed this holding:

[W]here discretion is afforded a sentencingbody on a matter so grave as the determinationof whether a human life should be taken orspared, that discretion must be suitablydirected and limited so as to minimize the riskof wholly arbitrary and capricious action.

A capital sentencing scheme must, in short,provide a “‘meaningful basis for distinguishingthe few cases in which [the penalty] is imposedfrom the many cases in which it is not.’”

This means that if a State wishes to authorizecapital punishment it has a constitutionalresponsibility to tailor and apply its law in amanner that avoids the arbitrary and capriciousinfliction of the death penalty. Part of a State’sresponsibility in this regard is to define the crimesfor which death may be the sentence in a way thatobviates “standardless [sentencing] discretion.” Itmust channel the sentencer’s discretion by “clearand objective standards”that provide “specific and


detailed guidance,”and that “make rationallyreviewable the process for imposing a sentence ofdeath.” As was made clear in Gregg, a deathpenalty “system could have standards so vaguethat they would fail adequately to channel thesentencing decision patterns of juries with theresult that a pattern of arbitrary and capricioussentencing like that found unconstitutional inFurman could occur.”

In the case before us the Georgia SupremeCourt has affirmed a sentence of death based uponno more than a finding that the offense was“outrageously or wantonly vile, horrible andinhuman.” There is nothing in these few words,standing alone, that implies any inherent restrainton the arbitrary and capricious infliction of thedeath sentence. A person of ordinary sensibilitycould fairly characterize almost every murder as“outrageously or wantonly vile, horrible andinhuman.” Such a view may, in fact, have beenone to which the members of the jury in this casesubscribed. If so, their preconceptions were notdispelled by the trial judge’s sentencinginstructions. These gave the jury no guidanceconcerning the meaning of any of § (b)(7)’s terms.In fact, the jury’s interpretation of § (b)(7) canonly be the subject of sheer speculation.

The standardless and unchanneled impositionof death sentences in the uncontrolled discretionof a basically uninstructed jury in this case was inno way cured by the affirmance of those sentencesby the Georgia Supreme Court. Under state lawthat court may not affirm a judgment of deathuntil it has independently assessed the evidence ofrecord and determined that such evidence supportsthe trial judge’s or jury’s finding of anaggravating circumstance.

In past cases the State Supreme Court hasapparently understood this obligation as carryingwith it the responsibility to keep § (b)(7) withinconstitutional bounds. Recognizing that “there isa possibility of abuse of [the § (b)(7)] statutoryaggravating circumstance,” the court hasemphasized that it will not permit the language ofthat subsection simply to become a “catchall” forcases which do not fit within any other statutory

aggravating circumstance. Thus, in exercising itsfunction of death sentence review, the court hassaid that it will restrict its “approval of the deathpenalty under this statutory aggravatingcircumstance to those cases that lie at the core.”

* * *

* * * [O]pinions [by the Georgia SupremeCourt] suggest that the Court had by 1977 reachedthree separate but consistent conclusionsrespecting the § (b)(7) aggravating circumstance.The first was that the evidence that the offensewas “outrageously or wantonly vile, horrible orinhuman” had to demonstrate “torture, depravityof mind, or an aggravated battery to the victim.”The second was that the phrase, “depravity ofmind,” comprehended only the kind of mentalstate that led the murderer to torture or to commitan aggravated battery before killing his victim.The third * * * was that the word, “torture,” mustbe construed in pari materia with “aggravatedbattery” so as to require evidence of seriousphysical abuse of the victim before death. Indeed,the circumstances proved in a number of the §(b)(7) death sentence cases affirmed by theGeorgia Supreme Court have met all three ofthese criteria.

The Georgia courts did not, however, so limit§ (b)(7) in the present case. No claim was made,and nothing in the record before us suggests, thatthe petitioner committed an aggravated batteryupon his wife or mother-in-law or, in fact, causedeither of them to suffer any physical injurypreceding their deaths. Moreover, in the trialcourt, the prosecutor repeatedly told the jury – andthe trial judge wrote in his sentencing report [tothe Georgia Supreme Court] – that the murdersdid not involve “torture.” Nothing said on appealby the Georgia Supreme Court indicates that ittook a different view of the evidence. Thecircumstances of this case, therefore, do notsatisfy the criteria laid out by the GeorgiaSupreme Court itself in [its prior] cases. Inholding that the evidence supported the jury’s §(b)(7) finding, the State Supreme Court simplyasserted that the verdict was “factuallysubstantiated.”


Thus, the validity of the petitioner’s deathsentences turns on whether, in light of the factsand circumstances of the murders that he wasconvicted of committing, the Georgia SupremeCourt can be said to have applied a constitutionalconstruction of the phrase “outrageously orwantonly vile, horrible or inhuman in that [they]involved . . . depravity of mind . . . .” We15

conclude that the answer must be no. Thepetitioner’s crimes cannot be said to havereflected a consciousness materially more“depraved” than that of any person guilty ofmurder. His victims were killed instantaneously.16

They were members of his family who werecausing him extreme emotional trauma. Shortlyafter the killings, he acknowledged hisresponsibility and the heinous nature of hiscrimes. These factors certainly did not remove thecriminality from the petitioner’s acts. But, as wassaid in Gardner v. Florida, 430 U.S. 349, 358, it“is of vital importance to the defendant and to thecommunity that any decision to impose the deathsentence be, and appear to be, based on reasonrather than caprice or emotion.”

That cannot be said here. There is noprincipled way to distinguish this case, in whichthe death penalty was imposed, from the manycases in which it was not. Accordingly, thejudgment of the Georgia Supreme Court insofar asit leaves standing the petitioner’s death sentencesis reversed, and the case is remanded to that courtfor further proceedings.

Mr. Justice MARSHALL, with whom Mr.Justice BRENNAN joins, concurring in thejudgment.

* * *

* * * I readily agree with the plurality that, asapplied in this case, § (b)(7) is unconstitutionallyvague. * * *

* * *

In addition, I think it necessary to emphasizethat even under the prevailing view that the deathpenalty may, in some circumstances,constitutionally be imposed, it is not enough for areviewing court to apply a narrowing constructionto otherwise ambiguous statutory language. Thejury must be instructed on the proper, narrowconstruction of the statute. The Court’s casesmake clear that it is the sentencer’s discretion thatmust be channeled and guided by clear, objective,and specific standards. To give the jury aninstruction in the form of the bare words of thestatute – words that are hopelessly ambiguous andcould be understood to apply to any murder –would effectively grant it unbridled discretion toimpose the death penalty. Such a defect could notbe cured by the post hoc narrowing constructionof an appellate court. The reviewing court candetermine only whether a rational jury might haveimposed the death penalty if it had been properlyinstructed; it is impossible for it to say whether aparticular jury would have so exercised itsdiscretion if it had known the law.

* * *

* * * The Georgia Supreme Court has given noreal content to § (b)(7) in by far the majority ofthe cases in which it has had an opportunity to doso. * * * In no case has the Georgia court requireda narrowing construction to be given to the jury –an indispensable method for avoiding the“standardless and unchanneled imposition ofdeath sentences.” * * *

* * * Just five years before Gregg, Mr. JusticeHarlan stated for the Court that the tasks of

15. The sentences of death in this case rested

exclusively on § (b)(7). Accordingly, we intimate no

view as to whether or not the petitioner might

constitutionally have received the same sentences on

some other basis. Georgia does not, as do some States,

make multiple murders an aggravating circumstance, as

such.

16. In light of this fact, it is constitutionally irrelevant

that the petitioner used a shotgun instead of a rifle as

the murder weapon, resulting in a gruesome spectacle

in his mother-in-law’s trailer. An interpretation of §

(b)(7) so as to include all murders resulting in gruesome

scenes would be totally irrational.

Class 3 - Part 2 Aggravating Circumstances 1 0 Prof. Bright - Capital Punishment

identifying “before the fact those characteristicsof criminal homicides and their perpetrators whichcall for the death penalty, and [of] express[ing]these characteristics in language which can befairly understood and applied by the sentencingauthority, appear to be . . . beyond present humanability.” * * *

* * * I believe that the Court * * * wassubstantially correct in concluding that the task ofselecting in some objective way those personswho should be condemned to die is one thatremains beyond the capacities of the criminaljustice system. For this reason, I remain hopefulthat * * *, [the Court] it may eventually concludethat the effort to eliminate arbitrariness in theinfliction of that ultimate sanction is so plainlydoomed to failure that it – and the death penalty –must be abandoned altogether.

Mr. Chief Justice BURGER, dissenting.

After murdering his wife and mother-in-law,petitioner informed the police that he hadcommitted a “hideous” crime. The dictionarydefines hideous as “morally offensive,”“shocking,” or “horrible.” Thus, the very curiousfeature of this case is that petitioner himselfcharacterized his crime in terms equivalent tothose employed in the Georgia statute. For mypart, I prefer petitioner’s characterization of hisconduct to the plurality’s effort to excuse andrationalize that conduct as just another killing.The jurors in this case, who heard all relevantmitigating evidence obviously shared thatpreference; they concluded that this “hideous”crime was “outrageously or wantonly vile,horrible and inhuman” within the meaning of §(b)(7).

* * *

* * * It is this Court’s function to insure thatthe rights of a defendant are scrupulouslyrespected; and in capital cases we must see to itthat the jury has rendered its decision withmeticulous care. But it is emphatically not ourprovince to second-guess the jury’s judgment or totell the states which of their “hideous,” intentional

murderers may be given the ultimate penalty.Because the plurality does both, I dissent.

Mr. Justice WHITE, with whom Mr. JusticeREHNQUIST joins, dissenting.

* * *

* * * Our role is to correct genuine errors ofconstitutional significance resulting from theapplication of Georgia’s capital sentencingprocedures; our role is not to peer majesticallyover the lower court’s shoulder so that we mightsecond-guess its interpretation of facts that quitereasonably – perhaps even quite plainly – fitwithin the statutory language.2

Who is to say that the murders of Mrs. Godfreyand Mrs. Wilkerson were not “vile,” or“inhuman,” or “horrible”? In performing hismurderous chore, petitioner employed a weaponknown for its disfiguring effects on targets, humanor other, and he succeeded in creating a scene somacabre and revolting that, if anything, “vile,”“horrible,” and “inhuman” are descriptivelyinadequate.

And who among us can honestly say that Mrs.Wilkerson did not feel “torture” in her last

2. The plurality opinion states that “[a]n interpretation

of § (b)(7) so as to include all murders resulting in

gruesome scenes would be totally irrational” and that

the fact that both “victims were killed instantaneously”

makes the gruesomeness of the scene irrelevant. This

view ignores the indisputable truth that Mrs. Wilkerson

did not die “instantaneously”; she had many moments

to contemplate her impending death, assuming that the

stark terror she must have felt permitted any

contemplation. More importantly, it also ignores the

obvious correlation between gruesomeness and

“depravity of mind,” and “vile,” and between

gruesomeness and “inhuman.” Mere gruesomeness, to

be sure, would not itself serve to establish the existence

of statutory aggravating circumstance. § (b)(7). But it

certainly fares sufficiently well as an indicator of this

particular aggravating circumstance to signal to a

reviewing court the distinct possibility that the terms of

the provision, upon further investigation, might well be

met in the circumstances of the case.


sentient moments. Her daughter, an instant ago aliving being sitting across the table from Mrs.Wilkerson, lay prone on the floor, a bloodied andmutilated corpse. The seconds ticked by; enoughtime for her son-in-law to reload his gun, to enterthe home, and to take a gratuitous swipe at hisdaughter. What terror must have run through herveins as she first witnessed her daughter’s hideousdemise and then came to terms with theimminence of her own. Was this not torture? Andif this was not torture, can it honestly be said thatpetitioner did not exhibit a “depravity of mind” incarrying out this cruel drama to its mischievousand murderous conclusion? I should have thought,moreover, that the Georgia court could reasonablyhave deemed the scene awaiting the investigatingpolicemen as involving “an aggravated battery tothe victim[s].”

The point is not that, in my view, petitioner’scrimes were definitively vile, horrible, orinhuman, or that, as I assay the evidence, theybeyond any doubt involved torture, depravity ofmind, or an aggravated battery to the victims.Rather, the lesson is a much more elementary one,an instruction that, I should have thought, thisCourt would have taken to heart long ago. Ourmandate does not extend to interfering withfactfinders in state criminal proceedings or withstate courts that are responsibly and consistentlyinterpreting state law, unless that interference ispredicated on a violation of the Constitution. * **

* * *

The Georgia Supreme Court has * * * beenresponsible and consistent in its construction of §(b)(7). The provision has been the exclusive ornonexclusive basis for imposition of the deathpenalty in over 30 cases. In one excursus on theprovision’s language, the court in effect held thatthe section is to be read as a whole, construing“depravity of mind,” “torture,” and “aggravatedbattery” to flesh out the meaning of “vile,”“horrible,” and “inhuman.” I see no constitutionalerror resulting from this understanding of theprovision. Indeed, the Georgia Supreme Court hasexpressly rejected an analysis that would apply

the provision disjunctively, an analysis that, ifadopted, would arguably be assailable onconstitutional grounds. And the court has notedthat it would apply the provision only in “core”cases and would not permit § (b)(7) to become a“catchall.”

* * *

* * * The Georgia Supreme Court, faced witha seemingly endless train of macabre scenes, hasendeavored in a responsible, rational, andconsistent fashion to effectuate its statutorymandate as illuminated by our judgment in Gregg.Today, a majority of this Court, its argumentsshredded by its own illogic, informs the GeorgiaSupreme Court that, to some extent, its effortshave been outside the Constitution. I reject this asan unwarranted invasion into the realm of statelaw, for, as in Gregg, “I decline to interfere withthe manner in which Georgia has chosen toenforce [its] laws” until a genuine error ofconstitutional magnitude surfaces.

* * *Robert Godfrey was retried and again

sentenced to death. However, on federal habeascorpus review it was determined that his secondsentencing trial was barred by the doublejeopardy clause. Godfrey v. Kemp, 836 F.2d 1557(11th Cir. 1988). Godfrey is serving a sentence oflife imprisonment.


Gary D. MAYNARD, Warden, et al.,Petitioners,

v.William T. CARTWRIGHT.

Supreme Court of the United States486 U.S. 356, 108 S.Ct. 1853 (1988)

White, J., delivered the opinion for aunanimous Court. Brennan, J., filed a concurringopinion, in which Marshall, J., joined.

Justice WHITE delivered the opinion of theCourt.

On May 4, 1982, after eating their eveningmeal in their Muskogee County, Oklahoma, home,Hugh and Charma Riddle watched television intheir living room. At some point, Mrs. Riddle leftthe living room and was proceeding towards thebathroom when she encountered respondentCartwright standing in the hall holding a shotgun.She struggled for the gun and was shot twice inthe legs. The man, whom she recognized as adisgruntled ex-employee, then proceeded to theliving room where he shot and killed HughRiddle. Mrs. Riddle dragged herself down the hallto a bedroom where she tried to use a telephone.Respondent, however, entered the bedroom, slitMrs. Riddle’s throat, stabbed her twice with ahunting knife the Riddles had given him forChristmas, and then left the house. Mrs. Riddlesurvived and called the police. Respondent wasarrested two days later and charged withfirst-degree murder.

Respondent was tried and found guilty ascharged. The State, relying on three statutoryaggravating circumstances, sought the deathpenalty. The jury found two of them to have beenestablished: first, the defendant “knowinglycreated a great risk of death to more than oneperson”; second, the murder was “especiallyheinous, atrocious, or cruel.” Finding that theaggravating circumstances outweighed themitigating evidence, the jury imposed the deathpenalty. The Oklahoma Court of CriminalAppeals affirmed on direct appeal, and lateraffirmed a denial of state collateral relief.

Respondent then sought federal habeas corpus onseveral grounds. The District Court rejected eachof them, * * *. A panel of the Court of Appealsfor the Tenth Circuit affirmed, but rehearing enbanc was granted limited to the claim concerningthe challenged aggravating circumstance.

The en banc court * * * unanimously sustainedthe challenge. It stated that the words “heinous,”“atrocious,” and “cruel” did not on their face offersufficient guidance to the jury * * * [nor] had theOklahoma courts adopted a limiting constructionthat cured the infirmity and that was relied uponto affirm the death sentence in this case. Itconcluded that the Oklahoma Court of CriminalAppeals’ construction of the aggravatingcircumstance was “unconstitutionally vague”under the Eighth Amendment. * * *

* * * We affirm the judgment of the Court ofAppeals.

* * * The State * * * insists that in some casesthere are factual circumstances that so plainlycharacterize the killing as “especially heinous,atrocious, or cruel” that affirmance of the deathpenalty is proper. As we understand the argument,it is that a statutory provision governing a criminalcase is unconstitutionally vague only if there areno circumstances that could be said withreasonable certainty to fall within reach of thelanguage at issue. Or to put it another way, that ifthere are circumstances that any reasonable personwould recognize as covered by the statute, it is notunconstitutionally vague even if the languagewould fail to give adequate notice that it coveredother circumstances as well.

The difficulty with the State’s argument is thatit presents a Due Process Clause approach tovagueness and fails to recognize the rationale ofour cases construing and applying the EighthAmendment. * * * Claims of vagueness directedat aggravating circumstances defined in capitalpunishment statutes are analyzed under the EighthAmendment and characteristically assert that thechallenged provision fails adequately to informjuries what they must find to impose the deathpenalty and as a result leaves them and appellate


courts with the kind of open-ended discretionwhich was held invalid in Furman v. Georgia.

* * *

We think the Court of Appeals was quite rightin holding that Godfrey controls this case. First,the language of the Oklahoma aggravatingcircumstance at issue – “especially heinous,atrocious, or cruel” – gave no more guidance thanthe “outrageously or wantonly vile, horrible orinhuman” language that the jury returned in itsverdict in Godfrey. The State’s contention that theaddition of the word “especially” somehow guidesthe jury’s discretion, even if the term “heinous”does not, is untenable. To say that something is“especially heinous” merely suggests that theindividual jurors should determine that the murderis more than just “heinous,” whatever that means,and an ordinary person could honestly believe thatevery unjustified, intentional taking of human lifeis “especially heinous.” Likewise, in Godfrey theaddition of “outrageously or wantonly” to the term“vile” did not limit the overbreadth of theaggravating factor.

* * *

The State also insists that the death penaltyshould stand because the jury found twoaggravating circumstances, one of which wasunchallenged and is sufficient to sustain thesentence. * * * As the Tenth Circuit said, therewas “no provision for curing on appeal asentencer’s consideration of an invalidaggravating circumstance.” * * * [T]he Court ofAppeals cannot be faulted for not itselfundertaking what the state courts themselvesrefused to do.

* * *

[Justices Brennan and Marshall concurred. Nojustice dissented.]

Walton v. Arizona, Lewis v. Jeffers & Arave v. Creech

The Supreme Court upheld a finding ofArizona’s aggravating circumstance whichprovided for the death penalty it is werecommitted in an “especially heinous, cruel ordepraved manner” in Walton v. Arizona, 497 U.S.639 (1990), and Lewis v. Jeffers, 497 U.S. 764(1990)

In both cases, the Court found that the ArizonaSupreme Court had previously defined “especiallycruel” to mean that the victim had suffered mentalanguish before his death and had defined“especially depraved” to mean that the perpetrator“relishes” or derives “pleasure” from the crime,evidencing debasement or perversion and appliedthis construction in each cases, thereby satisfyingthe Eighth and Fourteenth Amendments. Writingin dissent, Justice Blackmun said the Court failedto determine whether the construction used by theArizona court would prevent the arbitrary andcapricious imposition of death sentences andsuggested that the court had widened rather thannarrowed the level of discretion.

In Arave v. Creech, 507 U.S. 463 (1993), theCourt found it unnecessary to decide whether theaggravating factor “utter disregard for human life”passes constitutional muster because the IdahoSupreme Court had adopted a limitingconstruction, saying the circumstance applied onlyto “callous” murders by a “cold-blooded, pitilessslayer.” The U.S. Supreme Court explained:

Webster’s Dictionary defines “pitiless” tomean devoid of, or unmoved by, mercy orcompassion. The lead entry for “cold-blooded”gives coordinate definitions. One, “marked byabsence of warm feelings: withoutconsideration, compunction, or clemency,”mirrors the definition of “pitiless.” The otherdefines “cold-blooded” to mean “matter offact, emotionless.” It is true that“cold-blooded” is sometimes also used todescribe “premedita[tion],” – a mental statethat may coincide with, but is distinct from, alack of feeling or compassion. But premedi-


tation is clearly not the sense in which the IdahoSupreme Court used the word “cold-blooded.”Other terms in the limiting construction –“callous” and “pitiless” – indicate that the courtused the word “cold-blooded” in its first sense. ** *

In ordinary usage, then, the phrase“cold-blooded, pitiless slayer” refers to a killerwho kills without feeling or sympathy. Weassume that legislators use words in theirordinary, everyday senses, and there is noreason to suppose that judges do otherwise. ** *

* * *

* * * The terms “cold-blooded” and “pitiless”describe the defendant’s state of mind: not hismens rea, but his attitude toward his conductand his victim. The law has long recognizedthat a defendant’s state of mind is not a“subjective” matter, but a fact to be inferredfrom the surrounding circumstances.

Determining whether a capital defendantkilled without feeling or sympathy isundoubtedly more difficult than, for example,determining whether he “was previouslyconvicted of another murder.” But that doesnot mean that a State cannot, consistent withthe Federal Constitution, authorize sentencingjudges to make the inquiry and to take theirfindings into account when deciding whethercapital punishment is warranted. * * *

The Court observed that, “[i]f the sentencerfairly could conclude that an aggravatingcircumstance applies to every defendant eligiblefor the death penalty, the circumstance isconstitutionally infirm” but found the constructionadopted by the Idaho court satisfied therequirement of narrowing from all murderseligible for death, those in which death should beimposed:

[T]he word “pitiless,” standing alone, mightnot narrow the class of defendants eligible forthe death penalty. A sentencing judge might

conclude that every first-degree murderer is“pitiless” * * *. [H]owever, we believe that asentencing judge reasonably could find that notal l Idaho capita l defendants are“cold-blooded.” That is because some withinthe broad class of first-degree murderers doexhibit feeling. Some, for example, kill withanger, jealousy, revenge, or a variety of otheremotions. In Walton we held that Arizonacould treat capital defendants who takepleasure in killing as more deserving of thedeath penalty than those who do not. Idahosimilarly has identified the subclass ofdefendants who kill without feeling orsympathy as more deserving of death. By doingso, it has narrowed in a meaningful way thecategory of defendants upon whom capitalpunishment may be imposed.

Justice Blackmun, with whom Justice Stevensjoined, dissented. Justice Blackmun characterizedthe majority’s opinion as “nonsense upon stilts,”because defining “utter disregard” as“cold-blooded” is “both vague and unenlighteningand because the majority’s recasting of thatmetaphor is not dictated by common usage, legalusage, or the usage of the Idaho courts, the statutefails to provide meaningful guidance to thesentencer as required by the Constitution.” Hecontinued:

* * * The entire point of the challenge isthat the language’s susceptibility to a variety ofinterpretations is what makes it (facially)unconstitutional. To save the statute, the Statemust provide a construction that, on its face,reasonably can be expected to be applied in aconsistent and meaningful way so as to providethe sentencer with adequate guidance. Themetaphor “cold-blooded” does not do this.

* * * The majority points out that the firstdefinition in Webster’s Dictionary under theentry “cold-blooded” is “marked by absence ofwarm feelings: without consideration,compunction, or mercy.” If Webster’srendition of the term’s ordinary meaning is tobe credited, then Idaho has singled outmurderers who act without warm feelings:


those who act without consideration,compunction, or clemency. Obviously thatdefinition is no more illuminating than theadjective “pitiless” as defined by the majority.What murderer does act with consideration orcompunction or clemency?

* * * [T]he majority comes up with a hybridall its own – “without feeling or sympathy” –and then goes one step further, asserting thatbecause the term “cold-blooded” so obviouslymeans “without feeling,” it cannot refer asordinarily understood to murderers who “killwith anger, jealousy, revenge, or a variety ofother emotions.” That is incorrect. In everydayparlance, the term “cold-blooded” routinely isused to describe killings that fall outside themajority’s definition. In the first nine weeks ofthis year alone, the label “cold-blooded” hasbeen applied to a murder by an ex-spouseangry over visitation rights, a killing by ajealous lover, a revenge killing, an ex-spouse“full of hatred,” the close-range assassinationof an enemy official by a foe in a bitter ethnicconflict, a murder prompted by humiliation andhatred, killings by fanatical cult members, amurderer who enjoyed killing, and, perhapsmost appropriately, all murders. All thesekillings occurred with “feelings” of one kind oranother. All were described as cold-blooded.The majority’s assertion that the Idahoconstruction narrows the class of capitaldefendants because it rules out those who “killwith anger, jealousy, revenge, or a variety ofother emotions” clearly is erroneous, becausein ordinary usage the nebulous description“cold-blooded” simply is not limited todefendants who kill without emotion.

In legal usage, the metaphor “cold blood”does have a specific meaning. “Cold blood” isused “to designate a willful, deliberate, andpremeditated homicide.” As such, the term isused to differentiate between first- andsecond-degree murders. * * * Murder in coldblood is, in this sense, the opposite of murderin “hot blood.” * * *

* * *

* * * [T]he Idaho courts never havearticulated anything remotely approaching themajority’s novel “those who kill withoutfeeling or sympathy” interpretation. All kindsof other factors, however, have been invokedby Idaho courts applying the circumstance. Forexample, in State v. Aragon, the killer’sco ld-b loodedness supposedly wasdemonstrated by his refusal to render aid to hisvictim and the fact that “[h]is only concern wasto cover up his own participation in theincident.” * * *

* * * In State v. Fain, the court declaredthat the “utter disregard” factor refers to “thedefendant’s lack of conscientious scruplesagainst killing another human being.” Thus,the latest statement from the Idaho SupremeCourt on the issue says nothing aboutemotionless crimes, but, instead, sweepinglyincludes every murder committed that iswithout “conscientious scruples againstkilling.” I can imagine no crime that would notfall within that construction.

The record * * * includes an explicit findingby the trial judge that Creech was the subjectof an unprovoked attack and that the killingtook place in an “excessive violent rage.” IfCreech somehow is covered by the “utterdisregard” factor as understood by the majority(one who kills not with anger, butindifference), then there can be no doubt thatthe factor is so broad as to cover any case. IfCreech is not covered, then his sentence waswrongly imposed.

* * *

There is, of course, something distastefuland absurd in the very project of parsing thislexicon of death. But as long as we are in thedeath business, we shall be in the parsingbusiness as well. Today’s majority stretchesthe bounds of permissible construction past thebreaking point. “‘Vague terms do not suddenlybecome clear when they are defined byreference to other vague terms,’” nor dosweeping categories become narrow by mere


restatement. The [Idaho Supreme Court’s]formulation is worthless, and neither commonusage, nor legal terminology, nor the Idaho casessupport the majority’s attempt to salvage it. Thestatute is simply unconstitutional and Idahoshould be busy repairing it.

STATE of Arizona, Appellee,v.

Gary Wayne SNELLING, Appellant.

Supreme Court of Arizona, En Banc.236 P.3d 409 (2010).

PELANDER, Justice.

Gary Wayne Snelling was convicted of firstdegree murder and sentenced to death. * * *

FACTUAL AND PROCEDURALBACKGROUND

On July 14, 1996, Adele Curtis was cleaning atownhouse she owned in Phoenix so it could berented. The prospective tenant met Curtis at thetownhouse around noon, stayed for about twohours, and left through the unlocked front door.She last saw Curtis sitting on the stairs with adrink and sandwich and Curtis’s truck parkedoutside the townhouse.

* * *

* * * [Curtis’s niece went] to the townhouse onJuly 18 and discovered Curtis’s naked body lyingon the upstairs bathroom floor. Curtis had markson her neck consistent with a ligature. Themedical examiner opined that she had died ofasphyxia by strangulation. When the autopsy wasperformed on July 19, Curtis’s body was in anadvanced state of decomposition consistent withher having died three to four days earlier.

Police collected scrapings of a blood smear onan upstairs bedroom door frame and a blood dropon the bathroom floor near Curtis’s body. Anelectrical cord, cut from a lamp in the upstairsbedroom, was in the upstairs bathroom sink.

Fingerprints were found on receipts in thedownstairs bathroom; a fingerprint and palm printwere on the upstairs bathroom’s sink counter.Curtis’s partially eaten sandwich and drink wereon the stairway landing. On the kitchen counter,police found Curtis’s purse without any cashinside and with checks missing from a checkbook.Police also found a discarded beverage can inCurtis’s truck.

Curtis’s murder remained unsolved for severalyears. In 2003, a detective re-opened theinvestigation and submitted evidence for DNAtesting. A DNA profile obtained from thebeverage can matched Snelling’s profile, whichhad been obtained in an unrelated matter in 1999.Snelling’s profile also matched the profilesobtained from the blood smear and blood drop,and his DNA was likely present on the electricalcord. In addition, Snelling’s prints matched theprints found at the townhouse, and he had lived inthe same complex as Curtis at the time of themurder.

After his arrest, Snelling was incarcerated inthe same jail pod as Jerry Rader and told himabout having murdered Curtis. Snelling told Raderthat he had watched Curtis cleaning thetownhouse after the previous tenants moved out.He informed Rader that he had entered Curtis’stownhouse intending to sexually assault her, taken$1,000 from her purse, gone upstairs, cut a cord incase he needed a weapon, surprised her in thebathroom, and choked her to death when shescreamed.

Snelling was indicted for first degree murder(both premeditated and felony) and found guilty.During the aggravation phase of the trial, thejurors found that Snelling had committed themurder in an especially cruel manner, but couldnot decide whether he had committed the murderin expectation of pecuniary gain. The jury alsocould not reach a unanimous verdict on theappropriate penalty.

A second jury was impaneled to re-try thepenalty phase. After finding no mitigationsufficiently substantial to call for leniency, the


second jury determined that Snelling should besentenced to death.

* * *

INDEPENDENT REVIEW

* * *

The first jury found only one aggravatingfactor [the (F)(6) factor] – that Snelling murderedCurtis in an especially cruel manner. We reviewthe record de novo to determine whether theevidence supports that finding beyond areasonable doubt. * * *

The United States Supreme Court hasdetermined that Arizona’s (F)(6) aggravator isfacially vague but may be remedied by judicialconstructions limiting its application to specifiedcircumstances. * * *5

Our case law has so limited the (F)(6)aggravator. We have held that a murder isespecially cruel only if the state proves beyond areasonable doubt that “the victim consciouslyexperienced physical or mental pain prior todeath, and the defendant knew or should haveknown that suffering would occur.” Although“[t]he victim ... does not need to be conscious foreach and every wound inflicted,” the (F)(6)aggravator cannot be found if the evidence onconsciousness is inconclusive.

In addition, we have been “unwilling to saythat all stranglings are per se cruel.” Rather, toestablish that a murder by strangulation or anyother means is especially cruel, the state mustprove that the particular victim consciouslysuffered mental anguish or physical pain beforedeath.

I. Mental Anguish“Mental anguish includes the victim’s

uncertainty as to her ultimate fate.” In evaluatinguncertainty, “[t]he length of time during which avictim contemplates her fate affects whether thevictim’s mental anguish is sufficient to bring amurder within that group of murders that isespecially cruel.” Evidence of a victim’s pleas ordefensive injuries can show that she sufferedmental anguish. “The entire murder transaction,not just the final act, may be considered.”

The record contains no evidence that Curtiscontemplated her fate for very long. Based onwhat Snelling had told him, Rader testified in theguilt phase that Curtis yelled “Who’s there?”around the same time that Snelling was cutting thecord in the upstairs bedroom. According to Rader,Curtis opened the bathroom door, saw Snelling,and “got belligerent and yelled” when “he told herto just shut up and do what he said.” Snelling thenstrangled her with the cord “to shut her up” and“freaked” when “she fell down.”

Curtis likely was terrified when she heard anoise, opened her bathroom door, and sawSnelling holding an electrical cord. * * * But theclear inference from Rader’s testimony is thatvery little time elapsed between Curtis’s initiallyseeing Snelling and the murder.

The record also does not show that Curtis hadany defensive injuries. The medical examiner,when questioned about the possibility of sexualassault, testified that Curtis did not have anyobvious lacerations or bruises; and she discussedonly the single ligature mark on Curtis’s neckwhen asked about external physical injuries.

In addition, there was no evidence that Curtisstruggled with Snelling or pleaded for her life.Curtis had only a single ligature mark, indicatingthe ligature was not readjusted once placed on herneck. The small bathroom in which the murderoccurred was undisturbed; Curtis’s clothes wereneatly stacked on the toilet seat, and cleaningsupplies were lined up on the toilet tank. Cf. Statev. Walden, 618, 905 P.2d 974, 997 (1995) (findingsigns of a struggle when victim’s hands were

5. Because Arizona now requires jury findings of

aggravation and jury sentencing in capital cases, the

facial vagueness of the (F)(6) aggravator “may be

remedied with appropriate narrowing instructions,”

State v. Tucker, 160 P.3d 177, 189 (2007).


intertwined in the electrical cord used to strangleher and blood was sprayed around the room);State v. Amaya-Ruiz, 166 Ariz. 152, 177-78, 800P.2d 1260, 1285-86 (1990) (noting as evidencesupporting cruelty that “[t]he crime sceneexhibited signs of a violent and bloody struggle”).

Absent any evidence of defensive injuries, astruggle, or pleas for help, the record shows onlythat Curtis was suddenly confronted by anassailant who promptly strangled her to death. “Itis not inherently ‘cruel’ to murder a victimquickly and by surprise.” On this record, wecannot find beyond a reasonable doubt that, beforeher death, Curtis experienced the mental anguishrequired by our prior decisions.

II. Physical PainStrangulations are not per se physically cruel

absent specific evidence that the victimconsciously suffered physical pain. Yet “[t]hisCourt has held that a period of suffering fromeighteen seconds to two to three minutes can beenough to warrant application of the crueltyaggravator.”

The State presented no evidence of physicalsuffering. The medical examiner did not testifythat victims in general always experience, or thatCurtis in particular experienced, pain duringstrangulation. Nor did she mention any other6

injuries unrelated to the strangulation itself thatmight have caused Curtis pain. Cf. State v.Brewer, 826 P.2d 783, 798-99 (1992) (finding thestrangulation victim suffered physical pain fromthe injuries to her eye and the numerous bruisesand abrasions on her body).

The record also does not support a finding ofphysical pain relating to a sexual assault. Cf.Sansing, 77 P.3d at 34 (finding “[t]he evidence ofthe [victim’s] rape independently establishes both

mental and physical suffering”). Although foundnaked, Curtis apparently disrobed voluntarily totake a shower in the upstairs bathroom. Neithersemen nor sperm was found on the swabscollected in the sexual assault kit. The medicalexaminer testified that Curtis had no “obviouslacerations” or “gross bruises.” The positioning ofCurtis’s body on its side when found also did notindicate a sexual assault. And the trial courtdirected a verdict against the State on the sexualassault predicate for the felony murder charge (butnot the attempted sexual assault predicate) afterdetermining that the evidence did not support sucha finding.

In addition, the evidence on whether Curtisconsciously experienced physical pain wasinconclusive. Based on unidentified reports inmedical literature, the medical examiner testifiedthat a strangulation victim generally remainsconscious for ten to one hundred seconds if theligature totally encircles the neck and the victimremains passive. She further testified that suchvictims might remain conscious for minutes if theligature does not completely encircle the neck andthe victim fights. No other evidence, however,indicated whether, or for how long, Curtis wasconscious while being strangled. Cf. State v.Morris, 160 P.3d 203, 220 (2007) (finding crueltywhen the state presented evidence of a struggle inaddition to expert testimony that strangulationvictims remain conscious and experience pain forsome time). And even if Curtis was conscious forsome time during the strangulation, that alonedoes not support a finding of physical pain.

Although one might reasonably suspect thatany strangulation victim must experience physicalpain, speculation cannot support a finding ofespecial cruelty when, as here, the record containsno evidence of the physical pain required for an(F)(6) finding. Absent evidence of the painexperienced during strangulation or other bruises,abrasions, or wounds on the victim, and lackingany proof of a struggle, we cannot find beyond areasonable doubt that Curtis consciously sufferedphysical pain before or during the strangulation. ** *

6. The medical examiner testified that Curtis’s thyroid

cartilage was fractured during strangulation, but noted

that this cartilage, like the hyoid bone, is “easily

fractured.” In addition, she did not describe the nature

or extent of any pain associated with that internal

injury.


“The death penalty may be imposed only if thestate has proved the existence of at least oneaggravating factor beyond a reasonable doubt,”and we “will reduce a death penalty to lifeimprisonment where the evidence of aggravatingfactors is inconclusive.”

CONCLUSION* * * On independent review, * * * we find the

record insufficient to support the (F)(6)aggravator because the evidence does not provebeyond a reasonable doubt that Curtis consciouslysuffered mental anguish or physical pain sufficientto render the murder especially cruel. Therefore,we vacate Snelling’s death sentence and sentencehim to imprisonment for natural life. * * *

Assessing Prejudice Where

There is an Invalid Aggravator

The result in Zant v. Stephens depended uponGeorgia statutory scheme which made a defendanteligible for death upon the finding of oneaggravating circumstance. In later cases, the Courtfound the same result would not necessarily bereached in a states which require a weighing ofaggravating and mitigating circumstances, if oneof the aggravating circumstances was invalid. SeeClemons v. Mississippi, 494 U.S. 738 (1990).

In those circumstances the state court can doone of three things: it can remand the case to thetrial court for resentencing, it may reweighwithout the invalid aggravating factor if state lawallows the appellate court to reweigh, Clemons,494 U.S. at 741, or it may determine whether theerror is harmless, applying the standard forharmlessness established for constitutionalviolations in Chapman v. California, 386 U.S. 18(1967) (whether the error was harmless beyond areasonable doubt). See, e.g., Clemons, Sochor v.Florida, 504 U.S. 527 (1992): Parker v. Dugger,498 U.S. 308, 321(1991); or it may remand thecase to the trial court for a new sentencing trial.

A death sentence may also be invalid if thesentencer heard evidence that it would not haveotherwise received in considering an invalid

aggravating factor. In Tuggle v. Netherland, 516U.S. 10 (1995), a Virginia death sentence wasbased upon findings of both future dangerousnessand vileness aggravating factors. The futuredangerousness factor was set aside on appeal.However, the jury had considered evidence insupport of the future dangerousness factor thatshould not have been admitted. The VirginiaSupreme Court still upheld the death sentence, butthe U.S. Supreme Court vacated and remanded thecase for further consideration, including thepossibility of harmless error.

The Court reconsidered its approach todetermining the impact of an invalid aggravatingfactor in the case that follows.

Jill L. BROWN, Warden, Petitioner,v.

Ronald L. SANDERS.

Supreme Court of the United States546 U.S. 212, 126 S.Ct. 884 (2006).

Scalia, J., delivered the opinion of the Court, inwhich Roberts, C. J., and O’Connor, Kennedy,and Thomas, JJ., joined. STEVENS, J., filed adissenting opinion, in which Souter, J., joined.Breyer, J., filed a dissenting opinion, in whichGinsburg, J., joined.

Justice SCALIA delivered the opinion of theCourt.

We consider the circumstances in which aninvalidated sentencing factor will render a deathsentence unconstitutional by reason of its addingan improper element to the aggravation scale inthe jury’s weighing process.

IRespondent Ronald Sanders and a companion

invaded the home of Dale Boender, where theybound and blindfolded him and his girlfriend,Janice Allen. Both of the victims were then struckon the head with a heavy, blunt object; Allen diedfrom the blow. Sanders was convicted offirst-degree murder, of attempt to murder


Boender, and of robbery, burglary, and attemptedrobbery.

Sanders’ jury found four “specialcircumstances” under California law [at the guiltphase of the trial], each of which independentlyrendered him eligible for the death penalty. Thetrial then moved to a penalty phase, at which thejury was instructed to consider a list of sentencingfactors relating to Sanders’ background and thenature of the crime, one of which was “[t]hecircumstances of the crime of which the defendantwas convicted in the present proceeding and theexistence of any special circumstances found to betrue.” The jury sentenced Sanders to death.

On direct appeal, the California Supreme Courtdeclared invalid two of the four specialcircumstances found by the jury. It nonethelessaffirmed Sanders’ death sentence, relying on ourdecision in Zant v. Stephens * * *.

* * *

IISince Furman v. Georgia, we have required

States to limit the class of murderers to which thedeath penalty may be applied. This narrowingrequirement is usually met when the trier of factfinds at least one statutorily defined eligibilityfactor at either the guilt or penalty phase. Oncethe narrowing requirement has been satisfied, thesentencer is called upon to determine whether adefendant thus found eligible for the death penaltyshould in fact receive it. Most States channel thisfunction by specifying the aggravating factors(sometimes identical to the eligibility factors) thatare to be weighed against mitigatingconsiderations. The issue in the line of cases weconfront here is what happens when the sentencerimposes the death penalty after at least one valideligibility factor has been found, but under ascheme in which an eligibility factor or a specifiedaggravating factor is later held to be invalid.

To answer that question, our jurisprudence hasdistinguished between so-called weighing andnon-weighing States. * * * In a weighing State ** * the sentencer’s consideration of an invalid

eligibility factor necessarily skewed its balancingof aggravators with mitigators, and requiredreversal of the sentence (unless a state appellatecourt determined the error was harmless orreweighed the mitigating evidence against thevalid aggravating factors).

By contrast, in a non-weighing State – a Statethat permitted the sentencer to consideraggravating factors different from, or in additionto, the eligibility factors – this automatic skewingwould not necessarily occur. * * * The sentencer’sconsideration of an invalid eligibility factoramounts to constitutional error in a non-weighingState in two situations. First, due process requiresa defendant’s death sentence to be set aside if thereason for the invalidity of the eligibility factor isthat it “authorizes a jury to draw adverseinferences from conduct that is constitutionallyprotected,” or that it “attache[s] the ‘aggravating’label to factors that are constitutionallyimpermissible or totally irrelevant to thesentencing process, . . . or to conduct that actuallyshould militate in favor of a lesser penalty.” Zant[v. Stephens], 462 U.S., at 885. Second, the deathsentence must be set aside if the jury’sconsideration of the invalidated eligibility factorallowed it to hear evidence that would nototherwise have been before it.

This weighing/non-weighing scheme isaccurate as far as it goes, but it now seems to usneedlessly complex and incapable of providing forthe full range of possible variations. * * *

We think it will clarify the analysis, andsimplify the sentence-invalidating factors we havehitherto applied to non-weighing States, if we arehenceforth guided by the following rule: Aninvalidated sentencing factor (whether aneligibility factor or not) will render the sentenceunconstitutional by reason of its adding animproper element to the aggravation scale in theweighing process unless one of the other

sentencing factors enables the sentencer to giveaggravating weight to the same facts andcircumstances.

* * * If the presence of the invalid sentencing


factor allowed the sentencer to consider evidencethat would not otherwise have been before it, dueprocess would mandate reversal without regard tothe rule we apply here. The issue we confront isthe skewing that could result from the jury’sconsidering as aggravation properly admittedevidence that should not have weighed in favor ofthe death penalty. * * * As we have explained,such skewing will occur, and give rise toconstitutional error, only where the jury could nothave given aggravating weight to the same factsand circumstances under the rubric of some other,valid sentencing factor.

IIIIn California, a defendant convicted of

first-degree murder is eligible for the deathpenalty if the jury finds one of the “specialcircumstances” listed in Cal. Penal Code Ann. §190.2 (West Supp.2005) to be true. These are theeligibility factors designed to satisfy Furman. Ifthe jury finds the existence of one of the specialcircumstances, it is instructed to “take intoaccount” a separate list of sentencing factorsdescribing aspects of the defendant and the crime.These sentencing factors include, as we have said,“[t]he circumstances of the crime of which thedefendant was convicted in the presentproceeding.”

* * *

More specifically, Sanders’ jury found fourspecial circumstances to be true: that “[t]hemurder was committed while the defendant wasengaged in . . . Robbery,”; that it was “committedwhile the defendant was engaged in . . . Burglaryin the first or second degree,”; that “[t]he victim[Allen] was a witness to a crime who wasintentionally killed for the purpose of preventing. . . her testimony in any criminal . . .proceeding,”; and that “[t]he murder wasespecially heinous, atrocious, or cruel.” TheCalifornia Supreme Court set aside theburglary-murder special circumstance under statemerger law because the instructions permitted thejury to find a burglary (and thus theburglary-murder special circumstance) based onSanders’ intent to commit assault, which is

already an element of homicide. The courtinvalidated the “heinous, atrocious, or cruel”special circumstance because it had previouslyfound that to be unconstitutionally vague.

As the California Supreme Court noted,however, “the jury properly considered twospecial circumstances [eligibility factors](robbery-murder and witness-killing).” These aresufficient to satisfy Furman’s narrowingrequirement, and alone rendered Sanders eligiblefor the death penalty. Moreover, the jury’sconsideration of the invalid eligibility factors inthe weighing process did not produceconstitutional error because all of the facts andcircumstances admissible to establish the“heinous, atrocious, or cruel” and burglary-murdereligibility factors were also properly adduced asaggravating facts bearing upon the “circumstancesof the crime” sentencing factor. They wereproperly considered whether or not they boreupon the invalidated eligibility factors.

* * *

Justice STEVENS, with whom JusticeSOUTER joins, dissenting.

* * *

* * * [W]hen a jury is told to weighaggravating circumstances against mitigatingevidence in making its penalty decision, fouraggravators presumptively are more weighty thanthree. * * * For example, when a jury, as here, isincorrectly informed that its finding that a killingwas “heinous, atrocious, or cruel” provides areason for imposing death, that error may wellaffect the jury’s deliberations. Having been told toweigh “[t]he circumstances of the crime . . . andthe existence of any [aggravating] circumstancesfound to be true,” the jury may consider itsconclusion that the killing was heinous separatelyfrom the “circumstances of the crime” underlyingthat erroneous conclusion, improperly countingthe nature of the crime twice in determiningwhether a sentence of death is warranted. Or thejury, recognizing that the legislature has decidedthat a “heinous, atrocious, or cruel” murder,


without more, can be worthy of the death penalty,may consider this a legislative imprimatur on adecision to impose death and therefore givegreater weight to its improper heinousness findingthan the circumstances of the crime wouldotherwise dictate. Under either scenario a weighthas been added to death’s side of the scale, andone cannot presume that this weight made nodifference to the jury’s ultimate conclusion.

* * *

The majority, however, has decided to convertthe weighing/nonweighing distinction from onefocused on the role aggravating circumstancesplay in a jury’s sentencing deliberations to onefocused on the evidence the jury may considerduring those deliberations. * * * But whether anaggravating circumstance finding plays a role inthe jury’s decision to impose the death penalty hasnothing to do with whether the jury mayseparately consider “all the ‘circumstances of thecrime.’”

In this case, if the question had been presentedto us, I might well have concluded that the errorhere was harmless. * * *

* * *

Justice BREYER, with whom JusticeGINSBURG joins, dissenting.

* * * In my view, it does not matter whetherCalifornia is a “weighing” or a “nonweighing”State, as ordinary rules of appellate review shouldapply. A reviewing court must find that the jury’sconsideration of an invalid aggravator washarmless beyond a reasonable doubt, regardless ofthe form a State’s death penalty law takes.

* * *

IITo distinguish between weighing and

nonweighing States for purposes of determiningwhether to apply harmless-error analysis isunrealistic, impractical, and legally unnecessary.

AUse of the distinction is unrealistic because it

is unrelated to any plausible conception of how acapital sentencing jury actually reaches itsdecision. First, consider the kind of error here atissue. It is not an error about the improperadmission of evidence. It is an error about theimportance a jury might attach to certainadmissible evidence. Using the metaphor of a“thumb on death’s side of the scale,” we haveidentified the error as the “possibility not only ofrandomness but also of bias in favor of the deathpenalty.” * * *

Second, consider why that error could affect adecision to impose death. If the error causes harm,it is because a jury has given special weight to itsfinding of (or the evidence that shows) the invalid“aggravating factor.” The jury might do sobecause the judge or prosecutor led it to believethat state law attaches particular importance tothat factor: Indeed, why else would the State callthat factor an “aggravator” and/or permit it torender a defendant death eligible? * * *

* * *

The only difference between the two kinds ofStates is that, in the nonweighing State, the jurycan also consider other aggravating factors (whichare usually not enumerated by statute). * * * Butthe potential for the same kind of constitutionalharm exists in both kinds of States, namely thatthe jury will attach special weight to thataggravator on the scale, the aggravator that thelaw says should not have been there.

* * *

BThe distinction is impractical to administer for

it creates only two paradigms – States that weighonly statutory aggravators and States that weighany and all circumstances (i.e., statutory andnonstatutory aggravators). Many States, however,fall somewhere in between the two paradigms. AState, for example, might have a set ofaggravating factors making a defendant eligiblefor the death penalty and an additional set of


sentencing factors (unrelated to the eligibilitydetermination) designed to channel the jury’sdiscretion. California is such a State, as it requiresthe jury to take into account the eligibility-relatedaggravating factors and 11 other sentencingfactors – including an omnibus factor that permitsconsideration of all of the circumstances of thecrime. * * *

COur precedents, read in detail, do not require

us to maintain this unrealistic and impracticaldistinction. * * *

* * *

The Court in Zant [v. Stephens] did not saythat the jury’s consideration of an improperaggravator is never harmless in a State likeGeorgia. It did say that the jury’s consideration ofthe improper aggravator was harmless under thecircumstances of that case. And the Court’sdetailed discussion of the jury instructions isinconsistent with a rule of law that would requirean automatic conclusion of “harmless error” inStates with death penalty laws like Georgia’s. * **

* * *

III* * * I would require a reviewing court to

examine whether the jury’s consideration of anunconstitutional aggravating factor was harmful,regardless of whether the State is a weighing Stateor a nonweighing State. I would hold that the factthat a State is a nonweighing State may make thepossibility of harmful error less likely, but it doesnot excuse a reviewing court from ensuring thatthe error was in fact harmless. Our cases in thisarea do not require a different result.

* * *

Common sense suggests, however, and thisCourt has explicitly held, that the problem beforeus is not a problem of the admissibility of certainevidence. It is a problem of the emphasis given tothat evidence by the State or the trial court. If that

improper emphasis is strong enough, it canwrongly place a “thumb on death’s side of thescale” at Stage Two (sentencing). * * *


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Yale University Professor Stephen B. Bright · All cases of homicide of every category are ... aggravating circumstance, to consider multiple aggravating circumstances any more significant