A Change in Death Penalty Jurisprudence: Unconstitutional Factors

Brown v. Sanders

Because of how convoluted this case is I will describe it more abstractly than usual. The case concerns a death penalty defendant whose sentence was based on 4 aggravating factors, two of which were held unconstitutional on appeal. The question before the Court (technically) is whether California is a "weighing" or a "nonweighing" state, but the Court concludes that the weighing/nonweighing scheme is ill-advised and institutes a new system.

In keeping with its rich tradition of counterintuitive terminology, the Court declared two classes of states that allowed the death penalty (though this decision notes that state systems do not always fall neatly into a particular class): weighing and nonweighing. In death penalty cases, as per the mandates put forth when the Supreme Court declared capital punishment constitutional, there is a two tiered system, where a defendant is first found to be eligible for the death penalty, and second, is actually sentenced to death. For each tier there is a defined (statutory) set of factors that the jury or judge can consider. In "weighing" states the sentencer is instructed to consider all mitigating factors and weigh them against specific aggravating factors, whereas in nonweighing states the sentencer is instructed to weigh all mitigating factors against all other factors, not just those aggravating factors that were enumerated for the purpose of qualifying the defendant for the death penalty.

Under the previous rule, because the aggravating factors (step 2) in a nonweighing state were of a greater scope than the eligibility factors (step 1), a sentence would be upheld so long as one eligibility factor was constitutional (in this case an aggravating factor allowed the sentencer to consider "the circumstances of the crime"). The same was true for a state where the two sets of factors were completely different. In sates where the eligibility factors were equal or greater in scope (for lack of a better description) the consideration of an unconstitutional eligibility factor would introduce evidence into step 2 that would not be admissible if that factor had been recognized as unconstitutional, and would necessarily skew the step 2 consideration. If the same happened in a nonweighing state it would not necessarily do so, and would never do so if the two sets of factors were completely different.

The Court decided here that it would eschew the weighing/nonweighing system for a universal rule: "An invalidated sentencing factor (whether an eligibility factor or not) will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances." In this case the four factors that the jury found were (1) the murder was committed while the defendant was engaged in robbery, (2) it was committed while the defendant was engaged in burglary in the first or second degree, (3) the victim was a witness to a crime who was intentionally killed for the purpose of preventing her testimony, (4) the murder was especially heinous, atrocious, or cruel. The first two were paired down, and the fourth was declared unconstitutionally vague. The majority then comes to the conclusion that "the jury's consideration of invalid eligibility factors in the weighing process did not produce constitutional error because all of the facts and circumstances admissible to establish the 'heinous, atrocious, or cruel' and burglary-murder eligibility factors were also properly adduced as aggravating facts bearing upon the 'circumstances of the crime' sentencing factor."

Justices Stevens and Souter dissented because the only question before the court was whether California was a weighing or nonweighing state, and they believed that the Court of Appeals had properly determined that California was not. Justices Breyer and Ginsburg dissented, arguing that the weighing/nonweighing question was irrelevant, and that the as per "ordinary rules of appellate review" the Court had to determine whether the jury's consideration of an invalid factor was "harmless beyond a reasonable doubt," regardless of the framework (which they agreed should be discarded as "unrealistic, impractical, and legally unnecessary."