SUMNER v. SHUMAN

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Argument of D. Brian McKay

Chief Justice Rehnquist: We will hear arguments next in No. 86-246, George Sumner, et al., against Raymond Wallace Shuman.

General McKay, you may proceed whenever you're ready.

Mr. McKay: Mr. Chief Justice, may it please the Court:

The State of Nevada is here today on a writ of certiorari to the Ninth Circuit Court of Appeals.

That Federal Circuit Court of Appeals held a Nevada statute, which provided for the mandatory imposition of a death penalty under certain circumstances, unconstitutional.

That holding of the Ninth Circuit was contrary to a holding of the highest court in Nevada, the Nevada Supreme Court, which addressed the same question, and held it to be constitutional under both the U.S. Constitution, and the Nevada constitution.

Which brings us here this morning to the issue, to the question that is presented for this Court's determination this morning.

Which is: Did the imposition of a mandatory death penalty on an inmate, convicted of premeditated murder while serving a sentence of life in prison without the possibility of parole, imposed for an earlier, unrelated first degree... first degree murder conviction, constitute a cruel and unusual punishment as prohibited by the Eighth and Fourteenth Amendments of the United States Constitution.

The State of Nevada submits that, no, it did not.

The imposition of a mandatory death sentence in this case did not violate the Eighth Amendment, or did not violate any other provisions of the United States Constitution; and that the Ninth Circuit Court of Appeals decision was incorrect for the following reasons.

First, the Nevada statute is consistent... was consistent... with the basic tenets, the basic holdings of the Eighth Amendment, that in death penalty cases there be an individualized consideration of the character, in this case of the inmate, his record, and the circumstances of the latest murder.

Secondly, Nevada submits that its statute, as drawn at that time, narrowly defined the class of persons who were eligible for imposition of a mandatory death penalty.

Only the most incorrigible of people were subject to this ultimate sanction: those who are serving a life term, a life sentence, without the possibility of parole who then commit another first degree murder and are convicted of that.

There's been a societal decision to remove these people forever from free society.

Their criminal behavior is so unacceptable that there has been a determination that rehabilitation in these instances is simply not possible.

Unknown Speaker: Mr. McKay, does any State presently have such a law in effect?

Mr. McKay: Your Honor, there are no mandatory death penalties currently on the books today.

I believe all of the States reacted to this Court's decision in Woodson and Roberts.

Unknown Speaker: Do you... you think that there could, in theory, be some extenuating circumstances in one of these cases, for example, when the penalty... when the facts show a felony murder situation, for example, where the individual found guilty of murder did not actually do the killing?

Mr. McKay: Well, Your Honor, if we're talking about the predicate offense that created the life sentence in the first place--

Unknown Speaker: No, I'm talking about the murder for which the defendant is being tried after he's previously been put in prison for life.

Mr. McKay: --Well, first of all, under the Nevada statute and under the facts of this case, that's not what occurred.

But if it is a felony murder that occurs within the prison walls during his incarceration, I don't think that would make any difference.

I don't think that's an extenuating circumstance.

This individual... any person who fits within this category... has already been placed within a very narrowly defined category of eligibility.

So we believe that--

Unknown Speaker: General McKay, you say a narrowly defined category.

But the statute, when it was enacted, didn't limit the category to inmate murderers, did it?

That was one of four or five different subcategories, and as I remember the statute, it says at the end of it, anybody who commits any of these crimes, there will be a mandatory death penalty.

Mr. McKay: --Yes, Your honor.

Unknown Speaker: So the legislature never singled out this subcategory and said, we want a death penalty in this subcategory only.

Mr. McKay: The legislature singled out three or four categories, that is correct, as seriously aggravating crimes.

The State of Nevada concedes that the other categories, other than this, simply would not pass Constitutional muster under this Court's intervening decisions.

Unknown Speaker: And the Nevada legislature has never reexamined the question of whether this subcategory should be treated differently from the other subcategories, such as killing a police officer?

Mr. McKay: No, the Nevada legislature has not done that.

They reacted, again, to this Court's decision in Woodson and Roberts, and they abolished all mandatory death penalties in 1977 because Nevada legislature, reacting to the people of the State, very much wanted death penalty statute sanction on the books.

Unknown Speaker: While I've got you interrupted, can I ask you one other question?

In your view, under Nevada law as it's now constituted, and if... say the Court should affirm the decision here, could they have a second sentencing hearing under the new statute, and reimpose the death penalty on this particular litigant?

Mr. McKay: In this particular case, Your Honor, I believe that that could occur under Nevada law, as it exists today.

But that would create significant other problems, I think, in light of the length that this case is in the appellate process.

Unknown Speaker: I understand that.

I understand that.

Mr. McKay: So we believe that the statute as defined and applied in this case is qualitatively different than any other class of eligibility that could possibly exist.

Nevada also submits that there is no other sanction that could be adequate or meaningful if it were not able to impose a death penalty in this particular case.

Without a death penalty, the latest crime, the latest murder, committed by this respondent would simply go unpunished.

We submit that there comes a time when mere confinement is not longer a sufficient penalty.

We also believe--

Unknown Speaker: What do the other states do?

When somebody in jail for life commits a felony and kills somebody, what do the other states do?

Mr. McKay: --Currently the other states do the same thing as the State of Nevada, Justice Marshall, and they provide--

Unknown Speaker: I thought you said there was only one of these, and that was Nevada.

What do the other states do?

Mr. McKay: --The other states provide for the bifurcated proceeding.

Unknown Speaker: Well, why doesn't Nevada do the same?

Mr. McKay: Nevada does the same today, Your Honor.

This statute was only in effect from 1973--

Unknown Speaker: So what are we dealing with, a single case?

Mr. McKay: --Yes, you're dealing with... with one individual who was charged--

Unknown Speaker: One case.

Mr. McKay: --One case.

Unknown Speaker: And you just want to kill one man?

Mr. McKay: We want--

Unknown Speaker: You just want to kill one man, is that correct?

Mr. McKay: --We want to uphold the integrity of our criminal justice system in the State of Nevada.

Unknown Speaker: xxx and you can never kill another one.

Mr. McKay: Not according to the--

Unknown Speaker: Under those circumstances.

Mr. McKay: --That is correct.

Not under the procedure provided by Nevada law for that four-year period between 1973 and 1977.

Unknown Speaker: Of your own legislature?

Mr. McKay: That is correct.

And that's the next point that I was going to come to, Your Honor.

There has been a legislative determination, or there was a legislative determination, by the elected representatives of the people of the State that a mandatory death penalty was in fact necessary to enhance the valid goals of criminal justice that this Court has recognized, the goals of retribution, of deterrence, and of incapacitation.

And if that legislative judgment, provided of course that it comports with the basic requirements of the Eighth Amendment and the other constitutional provisions that apply to death penalty cases, is entitled to great deference by this Court.

Additionally, there is no question in this case as to the personal culpability, the personal responsibility, the moral guilt of the respondent; that's been conceded.

This Court has also been greatly concerned with the reliability of the process of the imposition of the death penalty.

We would submit that the quality of the record in this case makes clear that the process has been reliable.

There's been no wanton, arbitrary, capricious or irrational imposition in this case.

Addressing the respondent's primary argument that has been made, and his reliance upon Eddings v. Oklahoma, I think revolves around this Court's holding in Eddings v. Oklahoma.

The Court held in that case that when a statute that provided for aggravating and mitigating circumstances was on the books, and had to be addressed before there could be an imposition of the death penalty, that the sentencer was required to give weight and to consider any and all mitigating circumstances, and that they could not preclude consideration of mitigating circumstances.

That was the major holding in the Eddings case, and citing back to Lockett v. Ohio.

That case was not a mandatory death penalty case.

That case did not involve the inmate who was serving a life sentence without the possibility of parole.

I submit to this Court that Eddings v. Oklahoma did not say that in each and every capital case that any and all mitigating circumstances had to be presented to the sentencer prior to the imposition of a sentence at a separate sentencing hearing.

The Court simply didn't hold that.

I believe that the Ninth Circuit Court of Appeals has put words in this Court's mouth that it has yet to utter on this particular subject.

Therefore, because none of the constitutional infirmities that have been found by this Court in the past in Furman, in Woodson, in Lockett, in Coker, in Inman, in Eddings, simply do not exist in the case, in this particular case, because they simply are not there; that Nevada's mandatory death penalty statute at that time, imposing a mandatory death penalty on inmates who commit a murder while serving a life sentence without the possibility of parole is constitutional; and that such a holding would be consistent with this Court's prior holding on mandatory death cases.

We also submit that Shuman's death sentence is valid as applied under the facts of this case, and that the Ninth Circuit decision needs to be reversed.

Now the legal issue in this case has arisen from the following facts, which I think are necessary and appropriate to briefly go over.

In 1973 the respondent, Raymond Wallace Shuman, was incarcerated in the Nevada State Prison, where he was serving a life sentence without the possibility of parole, having been convicted of a prior first degree murder.

While incarcerated in prison in 1973, he became embroiled in an argument with the inmate occupying an adjacent cell.

That argument was over the opening and closing of a window.

Respondent elected to resolve that argument by pouring flammable liquid all over the inmate and lighting him on fire.

As a result of this burning, the inmate died three days later.

Respondent was charged with murder.

He was tried in 1975 by a jury.

He testified on his own behalf.

He testified as to his character.

He testified as to the circumstances of the offense.

Other witnesses testified on his behalf.

Nonetheless, the jury found his guilty of capital murder, and under Nevada law, in effect at that time, a mandatory death sentence was required.

Also under Nevada law at that time, the automatic appellate process began.

In 1978, the Nevada Supreme Court upheld both the conviction of the respondent and the imposition of the mandatory death sentence, specifically recognizing this Court's intervening decisions in Woodson v. North Carolina and Roberts v. Louisiana.

The court, the Nevada Supreme Court, held that this was that rare and unique circumstance that the Court had alluded to in Gregg, and had specifically footnoted in Woodson and in Roberts.

The Court found that there simply could not be any mitigating circumstances in a case such as this that would allow for this latest crime, this latest murder, to go unpunished.

As a result of that... and the court also found, for what it's worth, that the respondent was entitled and not precluded from introducing mitigating evidence or mitigating circumstances on his behalf.

Respondent then initiated post-conviction proceedings--

Unknown Speaker: What was the last thing you said?

He was not precluded from--

Mr. McKay: --He was not precluded from introducing any evidence of any kind--

Unknown Speaker: --Including mitigating?

Mr. McKay: --Including mitigating, that is correct.

Unknown Speaker: What use would the mitigating circumstances be?

Mr. McKay: Well, the mitigating circumstances--

Unknown Speaker: You can't acquit on the basis of a mitigating circumstance.

Mr. McKay: --No, but could... there were lesser--

Unknown Speaker: So I mean, it's like saying he could have sung songs or something.

It was useless as far as his defense was concerned, right?

Mr. McKay: --As far as this Court's later holding, that in bifurcated proceedings of aggravating versus mitigating, the answer to your question is, yes, Your Honor.

Unknown Speaker: So it's really irrelevant that mitigating evidence was allowed in.

Mr. McKay: Well--

Unknown Speaker: It was allowed in, but it couldn't be used for anything?

Mr. McKay: --Only to reduce a potential verdict, because there were lesser included offenses at the time.

Unknown Speaker: Well, to make the jury sympathize with the defendant, which I suppose what mitigating evidence is used for in every case.

Mr. McKay: Yes, Your Honor.

Unknown Speaker: But in other cases, if you sympathize with the defendant you can do something about it by recommending a lesser sentence.

Here, there was no option of a lesser sentence, right?

Mr. McKay: That is correct.

Unknown Speaker: xxx did the jury know that the penalty was mandatory?

Mr. McKay: Yes, Your Honor, they did.

Unknown Speaker: They were instructed that way?

How do you know they knew?

Mr. McKay: I am trying to recall what the jury instructions were.

Apparently the jury was not instructed that it was mandatory.

Unknown Speaker: But you think they knew?

Mr. McKay: No, I don't know.

Unknown Speaker: All right.

Mr. McKay: No, sir.

Unknown Speaker: So this was a single... single proceeding in which the issue of guilt and the issue of penalty was determined by the jury?

Or was just the issue of guilt determined?

Mr. McKay: Just the issue of guilt, because then the sentence was mandatory if he--

Unknown Speaker: So the judge says, you know, the jury having returned a verdict of guilty, I know sentence you to death.

And he had no alternative, I take it.

Mr. McKay: --Essentially, that is what has occurred, yes, Your Honor.

He had no alternative.

The respondent then commenced post-conviction proceedings in the State district court--

Unknown Speaker: Well, during the selection of the jury were there any questions about jurors being opposed to the death penalty?

Mr. McKay: --I believe that there were, Your Honor, yes.

Unknown Speaker: Thank you.

Mr. McKay: After the State post-conviction proceedings were unsuccessful, the respondent commenced Federal habeas corpus proceedings in a Federal district court for the District of Nevada.

A number of issues were raised in those habeas proceedings.

He attacked his 1958 conviction.

He attacked his 1975 conviction.

And of course, the imposition of the mandatory death penalty sentence.

Also during those habeas-corpus proceedings, respondent requested or asked to be allowed to present evidence of mitigating circumstances, assumedly because this Court had handed down its intervening decisions that allowed and addressed that particular subject.

The Court ordered respondent to provide a specification of proof before deciding whether to hold an evidentiary hearing, and respondent never provided any evidence that there were or could have been any mitigating circumstances to lessen a death penalty sentence in 1975.

Finally, I think it's appropriate to address the whole concept of appellate review as it applies to a death penalty case such as this.

So that we can assure that there has been... the Court can be assured that there has been no imposition of a death penalty without the individual examination of the character, of the record, and the circumstances of the offense.

This Court has held in its more recent decisions, Zant v. Stephens, Cabana, even in Pulley, that to some extent there is the availability of appellate review to ensure that there have been no constitutional violations before a death penalty, the ultimate sanction is imposed.

In Zant, I believe the Court held that if there is a narrow definition, if the class of eligibility is so narrowed that you have only a small class of people who are eligible, and if there has been an individualized consideration, then certain findings can be made at the appellate level.

We believe that the Court has the unusual opportunity to look at the facts of this case as if it were in a laboratory.

There can be a microscopic review of everything that occurred, everything that's finite.

There are no extraneous contaminations that come into play.

There's a limited application.

The statute came into effect in 1973.

Nevada's legislative response to this Court's determination in Furman v. Georgia, and it went out of existence in 1977, Nevada's legislative response to this Court's determinations in Woodson and in Roberts.

So we would submit that, again, there is a narrow class of individuals who are qualitatively different from any other conceivable class of individuals who could be subject to the death penalty.

Only if an individual commits a first degree murder and is convicted, and has been serving a life sentence in prison, a life sentence that a jury previously found was... made him eligible for this sentence, and the crime was so serious, and his character and his record so required, that that life sentence be without the possibility of parole, that he should never be put in... back into--

Unknown Speaker: xxx before '77?

Mr. McKay: --Pardon?

Unknown Speaker: And was committed before 1977?

Mr. McKay: Yes, sir, and was committed prior to 1977.

Unknown Speaker: Well, that's one of the other conditions.

Mr. McKay: Yes, sir.

Unknown Speaker: xxx one person.

Mr. McKay: That is correct.

It applies to one person and one person only.

Unknown Speaker: It so happens, he was not the triggerman in the other one?

Mr. McKay: In 1958, he was not the triggerman for that first degree murder conviction, no, not for the predicate offense.

There is no question that he was the perpetrator of the 1975 offense... 1973 offense for which the mandatory death penalty was imposed.

So we would submit that the Nevada mandatory statute in effect at that time was constitutional, and would not be inconsistent with this Court's other determinations.

If there are no other questions, I would like--

Unknown Speaker: 0 xxx.

Mr. McKay: --Eddings v. Oklahoma, Your Honor.

Unknown Speaker: It didn't... it didn't save this particular category of murders, did it?

Mr. McKay: Well, but it... I would submit that it didn't have to say this particular categories of murders.

Because it was quoting from Lockett, but Eddings was not a mandatory death penalty case.

It did not involve a life... an inmate serving a life sentence without the possibility of parole... of parole.

So I would just submit that in reducing the quote for that case, that's what occurred, it certainly was not a holding by this Court that that exception was now extinguished.

That's what the Ninth Circuit believes that this Court did, is extinguish Eddings.

That's what respondent has argued.

We respectfully submit that that is not what the Court did in Eddings v. Oklahoma.

Unknown Speaker: General McKay, you... in your presentation you pointed out that on collateral review in Nevada, as I understand it, he was given an opportunity to show mitigating circumstances, and he came up with nothing.

But... and you also rely heavily, of course, on the '58 conviction for felony murder.

But your view of the law, I take it, is, that even if during the period between 1958 and 1973 this individual had a history of startling good works, he just seemed to be a completely changed individual, and then had a sudden misfortunate in '73... or maybe not a misfortune... that would still all be totally irrelevant?

Mr. McKay: Your Honor, yes, it is our position that would be irrelevant.

And let me just carry that one step forward.

He killed in 1958.

He killed again in 1973.

Does that mean he's going to kill again in 1988?

Do we wait until he is on his normal schedule?

He has been found to be a person who should be removed from society.

He then committed murder.

There simply can be no other sanction it the death penalty cannot be imposed in this case.

The murder will go unpunished.

Unknown Speaker: But your view is that that's because you're pretty sure he's going to kill in 1988.

Supposing there was a lot of psychiatric... all sorts of expert testimony that the probability of this happening are one in ten million.

That would still be irrelevant it seems.

Mr. McKay: It would still be irrelevant.

Unknown Speaker: You don't have to rely on the killing in 1988?

Mr. McKay: No, that is correct.

That was pure speculation on my part, and we would not--

Unknown Speaker: You really don't need it for your case, if you're right.

Mr. McKay: --That is correct, Your Honor.

Unknown Speaker: If this judgment is affirmed, the individual just stays on for life?

Mr. McKay: That is correct.

If this judgment is affirmed and he remains, he is submitted to one more life sentence without the possibility of parole.

So he has not--

Unknown Speaker: Well, that's not what you told me earlier, General.

You told he would be eligible... you may not be able to do it... for a resentencing hearing.

Mr. McKay: --Well, depending on the order of the Court, that is correct; depending on the fashion of the order.

But--

Unknown Speaker: Under Nevada law, he would be subject to resentencing and getting the death penalty again.

If you can get your... if you still have your evidence and your witnesses and all that sort of thing.

Mr. McKay: --That's correct.

Well, Nevada law provided at that time, I might point out, that if the death penalty was held unconstitutional, then it would become a life without sentence.

But since that time we enacted our bifurcated proceedings, so I would assume that we could go forward on that.

I'm not positive.

Unknown Speaker: Similar to the Florida v. Dobbert is what you have?

Mr. McKay: Yes, sir.

If the Court has no additional questions, I would like to reserve the rest of my time.

Argument of M. Daniel Markoff

Chief Justice Rehnquist: Thank you, General McKay.

We will hear now from you, Mr. Markoff.

Mr. Markoff: Mr. Chief Justice, may it please the Court:

The issue, as we have looked at, really boils down to something very, very simple here.

And that's whether a State can kill a person without at least giving them a hearing first to show some mitigating factors on his behalf.

As was previously indicated, every State in the United States has repealed mandatory death penalty statutes such as the one we are talking about here.

Unknown Speaker: xxx that bears on the constitutional question, Mr. Markoff.

If they do that in response to decisions such as Woodson, can you not say that they're simply reacting to what they perceive the Court's constitutional doctrine to be, rather than this being the sentiment of the community?

Mr. Markoff: I would suggest, Mr. Justice Rehnquist, that the reason we had the mandatory death penalties was a response not to Woodson but to Furman.

Up to 1963, as recognized by the previous opinions of this Court, all states back then had repealed mandatory death penalty statutes, We went along, and then we had Furman in 1971.

And then all of a sudden, reaction to that decision, they passed mandatory death penalty statutes.

Legislatures pass them.

However, there is another indicia as to how the people felt at approximately that time, and that comes in the form of opinion forms as well, perhaps not the most reliable thing--

Unknown Speaker: You're using opinion polls to prove what?

Mr. Markoff: --That people at that point in time did not favor mandatory death penalty statutes.

Unknown Speaker: And how does that factor into the constitutional equation, these opinion polls?

Mr. Markoff: This Court has recognized that there are several ways of guaging or using as a barometer, how the people have felt.

The standard which we are concerned with here are the evolving standards of human decency in a maturing society.

And the Court--

Unknown Speaker: And how do the opinion polls factor into that?

Mr. Markoff: --Well, that's what I'm leading at.

The legislators have indicated their feeling on it by repealing all these statutes.

The opinion polls--

Unknown Speaker: But that's why I asked you the question.

Do you cite the repeal of a mandatory statute as showing public opinion?

Because my question is, might it not just show what the legislatures perceive what this Court's constitutional doctrine to require, rather than independently reflecting public opinion?

Mr. Markoff: --I would submit to the Court that there is a long history in this country of abhorrence with mandatory death penalties; that the history of this country has demonstrated that, over the years, we have... if the death penalty is to be imposed, that it be at least somewhat discretionary, and now it's guided discretion.

And that is what the legislatures have done, in effect; that's what the court has approved, this Court has approved.

And I wasn't pulling public opinion polls out of my hat.

That was referred to in the Woodson decision, I believe it was, that... just as another Indicia.

And they referred to a poll which was conducted by the Harris Survey back in 1974 or '5 along in there.

Unknown Speaker: Mr. Markoff, am I not correct that in some of the Furman opinions, mandatory death sentence statutes were forecast, as a result of Furman?

Mr. Markoff: They were forecast.

My recollection is that they were not approvingly forecast; that they figured it just might be the end result of the Furman decision.

Unknown Speaker: Well, they weren't approved.

But they... it was indicated this would be the result of Furman at that time.

Mr. Markoff: That it could be a possible result of Furman, and indeed, it was.

So we had these things.

But the states, I submit, were not comfortable by these things, as is indicated by what has happened.

They have all disappeared, and we are left with this relic of legislation out in Nevada.

Unknown Speaker: Mr. Markoff?

Mr. Markoff: Yes, sir.

Unknown Speaker: I'm not sure you've described the territory accurately as to what the situation was, at least in 1964.

We said in Woodson--

Mr. Markoff: '64 or '74?

Unknown Speaker: --'64, before Furman.

Mr. Markoff: Woodson came after Furman.

Unknown Speaker: I know.

Mr. Markoff: Oh, I'm sorry.

Unknown Speaker: I'm about to read you what we said in Woodson--

Mr. Markoff: Okay.

Unknown Speaker: --as to the earlier state of the law.

The only category of mandatory death sentence statutes that appears to have had any relevance to the actual administration of the death penalty in the years preceding Furman concern the crimes of murder and assault with a deadly weapon by a life term prisoner.

Statutes of this type apparently existed in five states in 1964.

So our... you know, our conclusion that the... that the... I forget how you described it, a maturing society... apparently maturation hadn't proceeded in this area as it had in the other areas with regard to the mandatory death penalty.

Mr. Markoff: I submit that we were... we didn't have them all repealed by '63, we were certainly going that direction in having them all repealed until the Furman decision came out.

The vast majority of the states did not approve this type of a sentencing procedure.

So what we then have is the standard as far as the substantive law is under the Constitution, the Eighth Amendment, of these evolving standards of human decency in a maturing society.

We have also submitted to the Court that the statute which we are concerned with procedurally violates the Constitution, and that such a mandatory death penalty, because of its unusual nature, cannot be imposed in an arbitrary and capricious fashion, and must give due consideration to the record and character and circumstances of the offense.

Unknown Speaker: Mr. Markoff--

Mr. Markoff: Yes.

Unknown Speaker: --what's distinctive about this case is, in all of our other cases, we've essentially said to the states, you can't put the individual to death.

You have to give the jury the option of considering some other penalty.

What you're asking us to say here is quite different.

That is, you can't put the individual to death.

You have to give the jury the option of imposing no punishment at all, right?

What could be done to this prisoner who is in prison for life without parole, if the death penalty is not imposed?

There's no penalty, right?

No penalty available?

Mr. Markoff: That isn't correct, I submit.

Unknown Speaker: Well, what would it be?

Mr. Markoff: The best way to guage the punishment that Mr. Shuman is continuing to suffer at this point in time is by simply looking at the case on which he was originally sentenced in 1958, where he was given life without the possibility of parole.

As the Court has already noted, our client was not the killer in that particular case in 1958.

The codefendant was.

The codefendant received the same sentence that Mr. Shuman did, which was life without parole.

Unknown Speaker: That's water over the dam.

He has that sentence now.

What punishment will be imposed for incinerating his cellmate or the individual in the next cell--

Mr. Markoff: That's precisely--

Unknown Speaker: --if the death penalty is not imposed here?

Mr. Markoff: --That is precisely what I am referring to, The codefendant was released in 1977 on parole.

He is no longer under any sentence whatsoever as far as incarceration is concerned.

So he's been free for 10 years.

Mr. Shuman, because of his actions involved in this very case, has continued to be in prison now for 10 years, and in all likelihood, will be in prison for the rest of his life.

Unknown Speaker: What does without possibility of parole mean in Nevada anyway?

Mr. Markoff: That's a good question.

Perhaps the legislature should be compelled to speak English or something.

Because life without parole does not mean life without parole, as is indicated in the facts of this very case right here involving Mr. Shuman's codefendant.

Unknown Speaker: xxx whatever exception there was in our cases, saving this... saving this possibility just doesn't apply in this case, because this isn't a sentence to life without parole?

Mr. Markoff: But that's exactly what the situation is.

The possibility of parole has always been there, and always has been for other defendants.

Indeed, in the presentence report for Mr. Shuman which was prepared, it recognized... in the presentence report that was prepared in 1975 for him involving this case, it was recognized that but for this action, he could have probably received a life with a possibility of parole, or words to that effect.

Unknown Speaker: What sentence would the jury impose if he's retried under the bifurcated system, if it doesn't Impose the death penalty?

Is that another life without possibility of parole, is that's one of its choices?

But we meant it?

I mean, is that what they would say?

Life without parole, but we mean it this time?

Mr. Markoff: I don't know.

I would submit that that is a sentence that is a possibility.

And of course, what the state does with their sentence of life without parole is up to the state.

Mr. Shuman has no control over that.

Unknown Speaker: But your point is, even if they don't mean it the second time, it is punishment that's greater than he would otherwise suffer?

Mr. Markoff: Yes, and it already has been.

Unknown Speaker: And in support of that, you rely on the fact that his codefendant in the '58 trial is actually on parole.

Does the record show that?

Mr. Markoff: I don't believe it does.

Unknown Speaker: It seems to me it's a rather important fact, and I'm wondering why it isn't in the record.

Mr. Markoff: I submit that it is an important fact, but it never came up in the lower court hearing.

The district court, when the thing was heard in front of Judge Reed--

Unknown Speaker: Well, is there any Nevada law of which we could take judicial notice to support your submission today, as I understand it, that life without possibility of parole in Nevada does not really mean that?

Are there any cases that support that?

How do we know that... I mean, I'm not suggesting you're misrepresenting but how can we verify that what you tell us is true?

Mr. Markoff: --Off the top of my head, sir, I don't know.

Unknown Speaker: It's not in your brief either, is it?

Mr. Markoff: No, it's not.

Unknown Speaker: Well, gee, this is an awfully important thing to drop on us right now, isn't it?

Mr. Markoff: I submit it is important, yes, sir.

Unknown Speaker: And you can't suggest where we might look to, you know, to establish that without parole in Nevada doesn't mean without parole?

Mr. Markoff: Well, it's a matter which is up before the Court.

Unknown Speaker: Have you been talking to Rex Lee about--

Mr. Markoff: I submit that it is a matter... the sentence which is imposed upon an individual remains life without the parole until the Parole Board changes it.

And so what they do is up again to the state.

I can't say--

Unknown Speaker: --But isn't there even a Nevada statute that gives the Parole Board the authority to do this?

Or do they just shoot from the hip whenever they feel like it?

Mr. Markoff: --It's a Western way, I suppose.

Unknown Speaker: Mr. Markoff, could you submit something writing to this Court to substantiate your statement here today?

Mr. Markoff: I would be more than happy to.

Unknown Speaker: I wonder why you didn't address that in your brief?

Mr. Markoff: Because we... responding to the state's arguments, what we saw in our response didn't really... or this particular type of a fact or a matter was not directly responsive to what they were representing.

Unknown Speaker: Well, the state has represented to us that this sentence to life without possibility of parole was the very kind of a situation that was saved in our opinion.

And now you say this isn't that situation at all.

Mr. Markoff: Well, perhaps if life without the possibility of parole meant life without the possibility of parole, it might come within that exception.

But we don't even have that situation.

Unknown Speaker: How long had your client been in prison before he committed this offense?

Mr. Markoff: The '75 conviction?

He was originally sentenced in 1958.

So that's '58 to '73, 15 years approximately.

Unknown Speaker: And how about his codefendant?

Mr. Markoff: His codefendant was released in 1977, according--

Unknown Speaker: And he was subject to the identical sentence?

Mr. Markoff: --As far as I know, yes.

Unknown Speaker: And was that just an ordinary parole, or was it because of health or what?

Mr. Markoff: I have no further facts on which--

Unknown Speaker: Do you know of any other person who has ever been released who has been subject to a sentence like that?

Mr. Markoff: --I'm sure there's plenty of them that have been.

I can't point one to you off the top of my head, but I'm sure it could be verified very quickly.

Unknown Speaker: Mr. Markoff, I want to be sure of one thing.

If you prevail here, is your client subject now to the system that is provided by the current statute so that he might receive the death penalty?

Mr. Markoff: It is possible.

That could happen.

Judge Reed in the lower court, in the U.S. District Court for Nevada, had sentence... had referred the matter back for resentencing in front of the state courts.

And then of course the state took their appeal to the Ninth Circuit.

Unknown Speaker: So he still may end up by being executed?

Mr. Markoff: It's possible.

Depending of course upon the way the Court prefers to remand it.

There is other possibilities that are available for this individual as well.

People who have been sentenced under the mandatory statute in Nevada have had their sentences just made simply consecutive to any other life without parole that they were doing.

For instance, if a person killed two policemen or something like that, under the old mandatory statute, he would have two consecutive life sentences then.

I submit to the Court also that there are a number of mitigating factors that could have been submitted to... to the Court on behalf... and I'm talking about submitting to the state court on behalf of Mr. Shuman if it had been allowed.

Unknown Speaker: Mr. Markoff, now why don't you answer my earlier question on the assumption that life imprisonment without parole really means life imprisonment without parole, okay?

If it really meant that, isn't it true that you're asking us to say something that we've never said before in other cases?

In other cases, we've said, you have to allow mitigating circumstances, so that the jury may, if it wish, impose a lesser penalty than death?

But what you're asking us to do is to adopt a different principle.

You may allow... you must allow in mitigating factors so that the jury may if it wish impose no penalty whatever for this murder?

Mr. Markoff: No.

what I am--

Unknown Speaker: Well, what penalty could be... the man is in prison for life without possibility of parole already, and you're... you're asserting that the Constitution requires that the jury be given an opportunity to say, yes, you incinerated the man in the cell next door, but no penalty whatever?

Mr. Markoff: --No, the possible penalty he'd be subject to would be life without parole consecutive to the one he's already doing.

Unknown Speaker: Oh, you mean when he comes back?

That's in the next life.

Mr. Markoff: Well, the way it works, apparently--

Unknown Speaker: Do you have jury sentencing in Nevada?

Mr. Markoff: --Currently?

Unknown Speaker: Yes.

Mr. Markoff: The current system is one of having a bifurcated system with mitigating factors being presented.

Unknown Speaker: By the jury, not the judge.

Mr. Markoff: To the jury, yes, and they make the decision.

Unknown Speaker: Is that true all throughout your criminal system, jury sentencing, as in most of the Southern states?

Mr. Markoff: No, sometimes there's a three-judge panel that could be involved in a particular case.

Unknown Speaker: Suppose somebody is up for robbery; he's convicted.

Who imposes the sentence in Nevada?

Mr. Markoff: Normally the judge, who has a range of years from which he can pick.

Unknown Speaker: But then... just to be sure I understand... the jury participates only in capital cases in the sentencing?

Mr. Markoff: Right, that's correct.

As I was saying, these mitigating factors that should be either examined--

Unknown Speaker: xxx factors should have been presented in this particular case to the judge?

Mr. Markoff: --In this particular case, it would be to the jury, if it was a jury trial.

Unknown Speaker: Well, but I know, in the mandatory... under the mandatory statute, the jury had nothing to do with the sentence?

Mr. Markoff: Well, that's correct.

So we're looking now perhaps if it's--

Unknown Speaker: So you're saying that this statute must... that the Constitution required the jury to do the sentencing?

Mr. Markoff: --The jury, under the old system in Nevada, had nothing to say but guilty or innocent, one or the other.

Under the new system, the jury has the ability to consider mitigating factors.

I submit that the Constitution--

Unknown Speaker: But you are... you don't suggest that the jury... that the Constitution requires the jury to do the sentencing, do you?

Mr. Markoff: --No, I'm not.

Unknown Speaker: So it would satisfy your argument, suppose, if the judge had the discretion to consider mitigating circumstances?

Mr. Markoff: We are asking for something very minimal, and that's just the opportunity to present something at the hearing.

Unknown Speaker: And so the judge would have had the discretion not to impose any penalty at all?

Mr. Markoff: Perhaps.

But that would be up to the judge what he would feel under the circumstances.

Unknown Speaker: Well, not perhaps.

There's no option, except no penalty at all, or another life without parole next time around, right?

There's nothing else?

Mr. Markoff: That's basically it.

That's all the law... well, unless of course, the death penalty still applies, and they could resentence and give him that again, also.

But to this day, he has not even had any sort of a hearing concerning anything in his life, which is interesting.

Because if you go back and look at the 1958 case, the jury set the penalty there.

Sure, there was perhaps some mitigating factors that were introduced, as far as the actual defense was concerned in 1958; and the same thing could be said for '75.

But there was nothing presented that I am aware of concerning this individual's background, his psychological condition, his youth, anything.

Even '58 he never got the hearing as far as those hearings are concerned... '75.

So we are looking here at a man who is about to be killed, perhaps, and nobody has never heard anything about his life in detail at all.

Unknown Speaker: Well, how old was he in '73?

Mr. Markoff: Eighteen... in '73?

Unknown Speaker: Yes.

Mr. Markoff: I think he was 38.

I believe he was 40 at the time of the trial.

Unknown Speaker: Does the imposition of a second death sentence under these... a second sentence of life without possibility of parole in Nevada have any collateral consequences within the prison?

For instance, would it require solitary confinement or any other prison conditions?

Would it have any other consequence at all?

Mr. Markoff: I'm not aware whether solitary confinement as part of the statutory scheme would be available.

However, certainly as far as administrator framework, it may be available if he is considered that big of a danger.

Unknown Speaker: Well, only if he is a considered a danger.

The warden wouldn't be able to take upon himself the judgment that this fellow should be punished more and put him into solitary just to punish him.

Wardens don't have--

Mr. Markoff: No, but perhaps wardens... they have what they often call administrative segregation.

Unknown Speaker: --Oh, if he's dangerous.

I mean, if he thinks he's going to kill somebody else, and there's no other way to stop him from doing so except putting him into confinement, I suppose.

But you wouldn't say that if we sent this back, and the jury says, well, no punishment at all, that a warden could say, I'm going to send you to solitary anyway, because I think he shouldn't burn somebody without some punishment?

Mr. Markoff: Well, I would imagine that--

Unknown Speaker: Mr. Markoff, do you know the rules of the penitentiary?

Mr. Markoff: --Not in any detail.

Unknown Speaker: I'm just wondering what this--

Mr. Markoff: All I know is from a general perspective, and that's--

Unknown Speaker: --Well, you're not asserting that the warden has any authority to do that?

Mr. Markoff: --Not in terms of punishment, perhaps.

In terms of protection for other inmates.

Unknown Speaker: Well, but that isn't really the example here.

The question is not whether the jury finds no punishment.

The question is whether the warden dealing with a man whose been twice sentenced to life without possibility of parole may treat him differently from a man whose only been given that sentence once.

He would have certainly a basis for differentiating between them, whether he would do so, I don't know.

Mr. Markoff: They might have a basis for differentiating between them.

But even at this point in time, if my memory serves me correctly, Mr. Shuman is not on death row.

He's in general population.

Unknown Speaker: Could the warden put him in a fireproof cell, do you think?

Mr. Markoff: I suppose he could.

Unknown Speaker: I'm still confused by all this talk about a second life sentence without parole.

Because the death penalty is still a possibility at the end of whatever hearing comes along, is it not?

Mr. Markoff: It is a possibility.

Unknown Speaker: Isn't that the major risk that you're running--

Mr. Markoff: It is a major risk, yes.

Unknown Speaker: --Then why all this talk about a second life sentence without parole?

Mr. Markoff: Because that's another option that's available if a jury is to hear, or the sentencer whoever it may be, is to hear mitigating factors on behalf of this person.

It just gives... we want the hearing, if it's to be sent back, so a jury can or a sentencer can determine whether there are mitigating factors for this person.

It's a small thing to ask, but the consequences for Mr. Shuman are very severe.

Unknown Speaker: Well, do you concede that if the Ninth Circuit is affirmed, that the death sentence could be imposed for this particular individual, lawfully?

Mr. Markoff: Depending on the facts as they were to be presented at a hearing.

It's hard to forecast exactly how it would come down at the state court level again.

As perhaps--

Unknown Speaker: What do you mean by that?

Do you concede that it would be lawful to remand this case for a new sentencing proceeding, the results of which could be the imposition of a death sentence?

Mr. Markoff: --We think that is one of the options that is available to the Court.

Unknown Speaker: Is your answer yes or no?

Mr. Markoff: Yes.

Unknown Speaker: Did not the district court, in its conclusion, say that the case would be remanded for resentencing?

Mr. Markoff: That's what District Judge Reed did do.

Unknown Speaker: That would be under the new statute?

Mr. Markoff: As I read it, that's correct.

Unknown Speaker: What was the... I guess I could look it up... but what was the precise remand?

What did it say?

They couldn't say release him within a certain time unless you resentence him.

Mr. Markoff: It is further ordered that said Ramond Wallace Shuman is discharged and released from confinement on account of his sentence pronounced in case No. 33-259, unless the State within 120 days of this date orders, initiates, and completes a lawful resentencing proceeding in accordance with this order.

Unknown Speaker: You mean he's going to be released from his sentence of life without parole?

Mr. Markoff: No, no, the death sentence which had been imposed at that time.

I submit some of the mitigating factors that the court would consider would be his mental and emotional condition, his age, his youth and background such as it was before he went to prison, the fact that the codefendant was released in 1977, ten years ago; the conduct of the victim as well in this case, which is sometimes, under some of the state death penalty statutes, one of the mitigating factors to be considered; as well as his record in the institution, and whether or not the system itself contributed in anyway to this whole incident coming about.

Unknown Speaker: What mitigation did you introduce?

I mean, we're talking about enough mitigation to justify no penalty at all, right?

You're going to be put in something that is sufficiently significant that it will induce a jury to impose no penalty for killing somebody?

Mr. Markoff: That's certainly a possibility, Justice Scalia.

Unknown Speaker: It's the only possibility other than death.

Mr. Markoff: Uh-huh.

Unknown Speaker: And what mitigating evidence did you seek to introduce?

Mr. Markoff: We did not seek to introduce anything.

This came to us on a writ of habeas corpus to the Federal system.

He was represented by the state public defender--

Unknown Speaker: No, but he's complaining about the inability of the jury to consider mitigating evidence.

What mitigating evidence did he proffer?

Mr. Markoff: --None was proffered because it wasn't permitted.

Unknown Speaker: In his habeas proceeding, what did he bring forward?

Has he asserted the existence of any?

I mean, one of the points made by the state is that he hasn't come forward with any mitigating evidence?

Mr. Markoff: Well, the fact is that that was not really the issue that was being litigated at the time.

The issue was whether or not he should ever even have a hearing to present it in the state court.

And Judge Reed concluded that he hadn't been given that opportunity, and he should be.

Unknown Speaker: Well, still, on habeas, you'd expect him to come forward and say, you know, had I had the opportunity, what I would have said is--

Mr. Markoff: Well--

Unknown Speaker: --You would expect him to point to some mitigating evidence that existed.

Mr. Markoff: --Well, I'm pointing to some of them right here, and the fact that the codefendant was released, for instance, ten years ago; that life without parole doesn't mean life without parole.

Unknown Speaker: That's mitigating evidence on his part?

Mr. Markoff: No, no, it's mitigating evidence as to why the death penalty shouldn't be imposed.

They say he's in this particular class of people that are never, ever to be released in society again.

And yet here you have a codefendant in the same situation who is released into society again.

And certainly a jury should be able... or a sentencer should be able to take that into account as well.

I submit, however, that the district court, the U.S. district court, was not concerned with the actual facts, but whether there should be an opportunity for a hearing to hear these mitigating factors in the state court before a sentencer.

I submit to the court, also, that there are numerous policy reasons, and therefore, supporting our position that the Constitution mandates a mitigation hearing in these cases, as to why you should be entitled to have a mitigation hearing.

First of all, the only person to lose anything as a result of this sentence, if you will, is going to be Mr. Shuman.

He will be executed, and that will be it for him.

If you have a mitigation hearing, the state doesn't lose anything.

They could still seek perhaps the same punishment.

So they're not out of the ballpark, so to speak.

The state interests are also served by a discretionary death penalty statute, if you order having a mitigating hearing.

Because they can still seek the same thing, as I indicated.

They're not going to lose out on making their arguments.

And it's also an interest of a state, I submit, that they hear whether a life is worth saving; I submit that they cannot close their ears and bury their head in the sand before they hear about a person's life and just send him off to be executed.

Another extremely important factor is that no legislature can ever forecast all the mitigating factors of a person's life.

The state, in effect, has conceded this by changing the law in Nevada 10 years ago, in 1977, by allowing the hearing of mitigating factors.

The argument that the state has raised, in saying that these types of individuals should never, ever have the possibility of being out in society again, and should be automatically executed, is belied by the... and contradicted by the own conduct of the state in providing for the present scheme that they now have.

I submit to the Court, also, that not all people who do life are necessarily murderers.

You could be an aider and abetter, perhaps, or it could come under the felony murder rule, or something of that nature.

Finally... thank you very much.

Rebuttal of D. Brian McKay

Chief Justice Rehnquist: Thank you, Mr. Markoff.

Mr. McKay, Attorney General McKay, you have seven minutes left.

Unknown Speaker: Would you start off by telling us about this parole business?

Mr. McKay: Yes, sir, that's the first thing, Your Honor, I was going to do.

Under the state... under the laws of the State of Nevada, then and now, life without the possibility of parole means life without the possibility of parole.

There are only two circumstances in which it does not: If clemency is granted by the pardons board; or if the sentence has been reversed by an appellate court at any level.

Those are the only circumstances--

Unknown Speaker: How did this codefendant get out?

Mr. McKay: --This codefendant, I suspect, being imprisoned for 20 years, made an application to the pardons board.

And if his record was such that they felt--

Unknown Speaker: Well, why did the pardon board... oh, the pardon--

Mr. McKay: --The pardons board.

Unknown Speaker: --He was pardoned?

He was pardoned?

Mr. McKay: Yes, sir.

Yes, sir.

Unknown Speaker: By the executive?

Mr. McKay: Yes, sir.

Unknown Speaker: I see.

Mr. McKay: The parole board has no authority under Nevada law, did not then, does not now, to reduce a life without sentence.

Unknown Speaker: Do you know this as fact, or is that your supposition of what happened?

Mr. McKay: That is my... oh as to what happened to--

Unknown Speaker: The codefendant.

Mr. McKay: --It is my supposition that that is what happened.

Unknown Speaker: Well, you say that's all that could have happened.

Well, can't you find out for us what in fact did happen?

Mr. McKay: The fact of the pardon, Your Honor, we can find that out.

But it was not a parole board making a determination that that sentence could be reduced.

Unknown Speaker: Well, whoever it was.

Mr. McKay: Yes, sir, we can.

Unknown Speaker: Do you know that he's out?

Mr. McKay: Yes, we know that he's out.

Unknown Speaker: And you can tell us why he's out?

Mr. McKay: Yes.

Unknown Speaker: Is there any official material that tells us how often this sort of relief is granted to prisoners under this sentence?

Mr. McKay: I'm not sure if the pardons board has those statistics Your Honor.

I sit on the pardons board--

Unknown Speaker: Are their decisions officially reported in any publication?

Mr. McKay: --They are not officially reported in any publication.

They are not.

The state, I assume, keeps records of that.

As I said, I am... the pardons board is the governor, the attorney general, and the five justices of the supreme court.

Those are the composition of that board; it meets twice a year.

Unknown Speaker: Well, do the... do inmates, I suppose, just apply for a pardon, don't they?

Mr. McKay: Yes, they do.

Unknown Speaker: And do they get a hearing?

Mr. McKay: Yes, they do.

Unknown Speaker: And do they have a right to a hearing?

Mr. McKay: They have an absolute right, yes, they do, under--

Unknown Speaker: So that it's sort of like asking for parole?

Mr. McKay: --It is asking for... it is a clemency proceeding that is not a matter of right.

Unknown Speaker: Well, I know, but if he's guilty, he certainly isn't going to have that right very long.

Mr. McKay: That is correct.

Unknown Speaker: General McKay, do you serve on that board.

Mr. McKay: Yes.

Unknown Speaker: And just within the last year, how many favorable rulings have you made in cases like this?

Mr. McKay: Reducing a life without to a life with.

I don't know of any.

If any, there's been one, and it's been for health reasons.

Unknown Speaker: But there has been at least one other one?

Mr. McKay: I can't tell you for sure if it's been within the last year.

I've served on that board for five years.

Unknown Speaker: Well say, take five years, how often does it happen?

Do one or two of these people get reduced sentences?

Mr. McKay: From life without to life with, yes, it's probably happened one or two times.

Unknown Speaker: Each year?

Mr. McKay: No, since I've served on the board in that five year period.

Unknown Speaker: So this codefendant is really quite exceptional when he got this relief?

Mr. McKay: I can't tell you statistically, Your Honor, if that is the case.

Unknown Speaker: And you don't know, in the one or two times it's happened since you've been on the board, you don't remember why?

Was it ever just because he had a good record, or do you know?

Mr. McKay: I'm just... I just can't answer that question for sure.

I know it's happened for health reasons, I can't tell you if a life without has been reduced to a life with.

Unknown Speaker: I take it an additional option would be to reduce it something even further.

Mr. McKay: That is correct.

Unknown Speaker: Does that happen once in awhile?

Mr. McKay: Again, without looking at the statistics, I can't tell... I cannot tell you from my own knowledge.

Unknown Speaker: Well, let me put it this way.

They have a statutory right to a hearing before your group?

Mr. McKay: They do not have a statutory right to a hearing.

Unknown Speaker: Under your rules, they have a right?

Mr. McKay: Under the policy of the board, they are entitled to a hearing.

Unknown Speaker: Roughly how many of these hearings have you had in the last five years?

Mr. McKay: Two... ten.

Unknown Speaker: Pardon me?

Mr. McKay: Ten.

We have two a year.

Unknown Speaker: Two a year, I see.

And just one applicant at each of those hearings?

Mr. McKay: No, there are anywhere from three to seven applicants on the average.

Unknown Speaker: So in two hearings there might be 15 a year, 10 or 15 people.

Mr. McKay: That is correct.

Unknown Speaker: So over five years, there would be 60 or 70 people might have these hearings.

And they are... with only one or two exceptions, they've uniformly been denied, any relief at all?

That's just in these life without--

Mr. McKay: We're just talking about life without.

Unknown Speaker: --Yes.

Mr. McKay: There are not very many life withouts that come on before the pardons board.

Unknown Speaker: I see.

Mr. McKay: It covers any type of... any type of clemency is the purpose of the board, and this is just one particular area.

Let me go... let me please address one other issue.

You're correct, Justice Scalia, the crime in this instance would simply go unpunished.

There's no collateral impact, there's no collateral method of punishment within the prison system that would do anything to the contrary.

And I submit that single-celling an individual or putting them in solitary confinement is like saying, go to your room.

And that's fine for certain violations.

That's not fine for the crime of murder.

Additionally, in the condition that our prisons are in today, single-cell confinement might be considered a reward.

And I don't say that facetiously; it's a very serious problem that we face.

One final point that I'd like to make: The respondent had the opportunity at habeas corpus proceedings to present any mitigating circumstances, if they exist.

He did not.

He was ordered to by the court; did not.

And I submit there simply were not any.

Therefore, I suggest that the imposition of the death sentence in this case, mandatorily imposed by the Nevada statute, on an inmate serving a life sentence without the possibility of parole, was constitutional and did not violate his Eighth Amendment rights.

Chief Justice Rehnquist: Thank you, General McKay.

The case is submitted.