TENNESSEE v. MIDDLEBROOKS
Argument of Charles W. Burson
Chief Justice Rehnquist: We'll hear argument first this morning in Number 92-989, Tennessee v. Donald Ray Middlebrooks.
Mr. Burson: Mr. Chief Justice, may it please the Court:
We ask the Court today to reverse the judgment of the Tennessee supreme court vacating the sentence of death imposed by a jury on Donald Middlebrooks.
The Tennessee death penalty system achieves the goal of rational and principled sentencing in which only those truly deserving of the death penalty suffer the imposition of death.
The central procedural components of the system are narrowing, particularized, and individualized considerations at the penalty phase and proportionality review on direct appeal.
Unknown Speaker: Have you ever held that proportionality review is constitutionally required?
Mr. Burson: --Your Honor, the comparative proportionality review I think this Court has said is not constitutionally required.
The Tennessee supreme court indicated that it undertakes both types, traditional proportionality as well as comparative proportionality.
Unknown Speaker: So you're just describing the Tennessee--
Mr. Burson: Yes.
Unknown Speaker: --system.
Mr. Burson: Yes.
In Tennessee, narrowing first occurs when murderers who might otherwise be eligible as capital offenders are excluded by definition from the class of first degree murderers.
It next occurs when the legislature defines specific circumstances of first degree murder for which death may be imposed.
Unless the jury finds beyond a reasonable doubt that such a circumstance exists, they cannot impose death.
This is the means of channeling the jury's discretion so as to reduce the likelihood of death being imposed for irrelevant or constitutionally impermissible factors such as race.
It's the State's position that Tennessee's felony murder narrowing device serves this purpose in a rational, principled, and constitutionally sufficient manner.
It is rational in that it clearly, objectively, and specifically identifies circumstances of first degree murder that do not embrace all first degree murders.
Unknown Speaker: Do you have any idea, General Burson, of the percentage of first degree murders that are not subject to the capital sentencing procedure?
Do you have those statistics--
Mr. Burson: No, Justice Kennedy--
Unknown Speaker: --or can you get them to me?
Mr. Burson: --and we've tried to kind of run those down, and they're very elusive.
The classes that would not be subject to first degree murder would be simple intent murderers as well as those who murder not in the course of a felony that might be extremely reckless, and they would be preexcluded from the class of first degree murder.
Unknown Speaker: But you can't give us any idea of the percentage of the total universe of first degree murders that the excluded portion consists of?
Mr. Burson: No.
Unknown Speaker: General Burson, how are you defining first degree murder if simple intent murder comes within first degree murder?
Mr. Burson: No, simple intent murder does not come within first degree murder.
Unknown Speaker: I thought you said a moment ago that it did.
Mr. Burson: --Oh, no, it's excluded by definition from first degree murder.
I said that that is a group of murderers that might otherwise be eligible for a capital offense, but that are excluded from the definition of first degree murder.
Unknown Speaker: What do you mean by simple intent murder, just to... what is that?
Mr. Burson: Well, I mean that--
Unknown Speaker: No intent to kill?
Mr. Burson: --Well, that you have an intent... no, that you have an intent to kill as distinguished from premeditated, deliberate, and wilful.
Tennessee has actually construed, for instance, deliberated that you've got to have a very cool purpose, premeditated, cannot be formed in an instant, it has to be formed in some period of time beyond an instant, and so it would appear that what we would think of as a straight intent murder, with intent formed in an instant, which many jurisdictions allow under premeditation, would be precluded.
Unknown Speaker: In other words, the murders that are eligible are all premeditated murders and all felony murders.
Mr. Burson: That's correct.
Unknown Speaker: And in the felony murder category, as the statute was at the time of this crime, it did not require intent to kill, is that right?
Mr. Burson: That's correct.
It's our position that the circumstance is rational in that it clearly, objectively, and specifically identifies circumstances of first degree murder that don't embrace all first degree murders.
It's principled in that it's justifying--
Unknown Speaker: Well, again, you say circumstances of first degree murder that don't embrace all--
Mr. Burson: --Yes.
Unknown Speaker: --first degree murder.
What first degree murders are not embraced?
Mr. Burson: Premeditated and deliberate murders are not embraced and also, today, child abuse murders are not embraced by the felony murder aggravating circumstance.
Unknown Speaker: Oh, by the felony murder--
Mr. Burson: Yes.
I'm sorry for the confusion, Mr. Chief Justice.
Unknown Speaker: --But--
--But all first degree murders are potentially eligible.
Everything that tends--
Mr. Burson: Yes.
Unknown Speaker: --to be defined as a first degree murder is potentially eligible--
Mr. Burson: Yes, Justice--
Unknown Speaker: --for the death penalty.
Mr. Burson: --Yes, Justice Ginsburg, the... each... if you're convicted of the offense of first degree murder, the jury has two choices, life or death.
That's the same--
Unknown Speaker: So there's no narrowing at that stage.
All first degree... everyone that's eligible for first degree murder... everyone convicted of a first degree murder, whether felony murder or premeditated murder, is eligible for the death penalty, and all of the narrowing goes on at the sentencing stage, is that right?
Mr. Burson: --That's correct.
Unknown Speaker: Is that entirely correct, General Burson?
Certainly there are some homicides that are not death-eligible in Tennessee, are there not?
Mr. Burson: Yes, and... this... Mr. Chief Justice, the point I'm trying to make, basically what Tennessee does, it describes first degree murder, which are premeditated murders, felony murders.
All other homicides, all other murders fall below the line into second degree murder, and none of those are... is it possible to impose the death penalty on.
Unknown Speaker: So it would be perfectly proper to say that there is some narrowing there, would there not?
Mr. Burson: Yes.
Unknown Speaker: All right.
Now, in terms of those that are above the line, with respect to the felony murder category, I take it you agree that the felony murder aggravator, so-called, does no further narrowing?
We don't have any disagreement about that, do we?
Mr. Burson: It narrows the class of first degree murders.
Unknown Speaker: Yes, once it is... once the murder is classified as a felony murder, once the jury has come in with a verdict to felony murder--
Mr. Burson: Yes.
Unknown Speaker: --as opposed to premeditated murder, then the possible application later of the felony murder aggravator, so-called, does not narrow that subset of first degree murders, i.e. felony murders, any further.
Mr. Burson: That's correct.
Unknown Speaker: We agree on that?
Mr. Burson: Yes.
Unknown Speaker: And as I understand it, your position is there is a further narrowing which is constitutionally sufficient, and that further narrowing is the result of applying, in effect, the Tison standard, the threshold proportionality standard that Tison imposed, right?
Mr. Burson: That certainly occurs independent of the aggravator, and we would contend it also occurs during the penalty phase when the jury considers all of the factors that an additional narrowing takes place, but in terms of the recklessness standard, that's constitutionally required by Tison, and it does restrict the State's ability to impose death on anyone who does not meet that standard.
Unknown Speaker: Well, is it your position that the application of the Tison standard satisfies the constitutional requirement of narrowing?
Once that standard has been applied, no further narrowing need take place constitutionally, is that your position?
Mr. Burson: Our position is that the entire system accomplishes that--
Unknown Speaker: Well, can you give me--
Mr. Burson: --as an aggravator--
Unknown Speaker: --Excuse me, general, please.
Mr. Burson: --Yes.
Unknown Speaker: Can you give me a yes or no answer?
Is it constitutionally sufficient to apply the Tison standard such that no further narrowing is constitutionally required?
Mr. Burson: Yes.
Unknown Speaker: Right.
Does it follow from that, then, that no narrowing need take place in the category of premeditated murders, because I assume premeditated murders at least satisfy the kind of proportionality threshold that Tison was trying to get at?
Mr. Burson: Maybe, and maybe not, if I could explain.
The issue with premeditated murder would be different than the issue of felony murder.
The issue with premeditated murder may well be a vagueness issue, depending on how narrowly the State would define its premeditated class.
It would not be--
Unknown Speaker: Well, do you think that your premeditated class is vaguely defined?
Mr. Burson: --I think in recent months the Tennessee supreme court has begun to very narrowly define premeditated murder, and I think it is possible that it would serve... could serve as a valid aggravating circumstance.
Unknown Speaker: So that, again, if it satisfied... if premeditated... if the class of premeditated murder is so defined as to pass muster under Tison, no further narrowing would be required constitutionally.
Mr. Burson: Under... yes, under Tison and under Creech and Godfrey.
Unknown Speaker: So Tison has basically, on your view, superseded the narrowing requirement, hasn't it?
Mr. Burson: No, it--
Unknown Speaker: If you satisfy Tison you're home free so far as narrowing is--
Mr. Burson: --No.
If I might explain, and I think it's important, we're looking at an entire system.
The aggravating circumstance has the purpose of narrowing from the entire class of... we're saying first degree murderers.
Now, it does that, and it has to be... do that in a principled... on a principled rationale, and those... this court I think has found that the Eighth Amendment requires deterrence, or retribution, as the principal basis for that narrowing.
Tison is a component of the system which is more or less the safety net that cuts across the entire system.
It is not a narrowing device necessarily unto itself.
It sets a substantive, constitutional threshold below which no one for felony murder can be sentenced to death.
Unknown Speaker: --Well, intent murders would... what you have called simple intent murders would satisfy Tison.
Mr. Burson: Yes.
I don't even think they would be included in Tison.
Tison was addressing the participation of an accomplice in a felony murder.
Unknown Speaker: All right, but I would take it that as a general proposition, all first degree murders would... let's just stick to premeditated for a moment.
I would say as a general proposition that all premeditated murders would satisfy Tison's threshold requirement, would you agree?
Mr. Burson: Yes, but again, unless premeditated murder were a felony murder, Tison really isn't applicable.
Unknown Speaker: Well, premeditated at least by the Tennessee definition is not a... could not be a felony murder.
I mean, felony murder is not defined that way.
Mr. Burson: Well, but a pre... someone could kill in a premeditated fashion in the course of a felony.
Unknown Speaker: And just be convicted of felony murder, yes.
Mr. Burson: Yes, or they could be convicted of premeditated murder and be subject to the felony murder aggravating circumstance.
Unknown Speaker: All right, in which case... but that's not the case before us, because in that case a further narrowing would in fact be taking place.
So go back to the premeditated murder category itself.
As a general proposition, you agree that that would satisfy Tison.
Mr. Burson: Yes--
Unknown Speaker: All right.
Mr. Burson: --as we've discussed it.
Unknown Speaker: Then does it not follow from the position you're taking with respect to Tison's application to felony murder that no further narrowing need take place in the premeditated murder category because it satisfies Tison.
Mr. Burson: I would not agree because it satisfies Tison, but I would agree that you could have, in the way we've discussed it, a premeditated, aggravating circumstance, so that--
Unknown Speaker: Well, there's one thing I'm just not getting, then.
If Tison is not sufficient in premeditated, why is Tison sufficient to satisfy narrowing in felony murder, or do I misunderstand your position that it is?
Mr. Burson: --Justice Souter, I guess... and I don't mean to pick this point, but Tison as we have read it is a case involving the standard, the threshold standard for felony murders and participants in felony murder, not premeditated murders, and that's why--
Unknown Speaker: No, but it's applying... it's applying an Eighth Amendment threshold, and the Eighth Amendment threshold would apply to any case, wouldn't it?
Mr. Burson: --Correct.
Well, it would... it would... an intent murder or a premeditated murder by the very definition exceeds the Tison standard of recklessness.
Unknown Speaker: Exactly, so that if Tison is your means of satisfying for felony murder, and a premeditated murder always exceeds the Tison threshold, then doesn't it follow that there need be no further narrowing in a premeditated murder case--
Mr. Burson: I have said--
Unknown Speaker: --or among the class--
Mr. Burson: --I have said... that's what I have said.
Unknown Speaker: --Okay.
Mr. Burson: Yes.
Unknown Speaker: General Burson, maybe--
Mr. Burson: Yes, Justice--
Unknown Speaker: --I can ask the same question this way.
You don't need any aggravator other than the crime that fits within the Tennessee statute plus Tison for felony murder, that's it?
Mr. Burson: --Yes.
Unknown Speaker: You said premeditated is a higher... kind of a higher category, and yet you do need an aggravator under the Tennessee law for premeditated murder.
That's the strange... you say, number 1 is premeditated murder, number 2 is felony murder, but felony murder you don't have to prove anything other than the felony murder itself with the Tison qualifications.
For premeditated murder, you do.
What is the rationale for that?
Mr. Burson: Justice Ginsburg, I think we're talking about in premeditated the mens rea of intent.
Felony murder would encompass reckless... extremely reckless murders as well as those who would intend, so in comparing a recklessness mens rea, so to speak, against a premeditated mens rea, the level of intent would have to be greater for premeditated murder.
However, the level of culpability, these are all first degree murder offenses.
The level of culpability is comparable for premeditated murderers and for felony murderers, and what the legislature in Tennessee has determined is that deterrence serves as a justifying rationale to create an aggravating circumstance of felony murder as a class of murderers, and they have come to that conclusion with certain types of premeditated murders such as a police murder, State attorney general murder, that sort of thing, which are purely based upon deterrent reasons.
But when I suggest that the premeditated standard as intent and deliberateness and coolness is higher than recklessness, I only mean as a mens rea, not in terms of culpability.
Unknown Speaker: So at the sentencing stage, felony murder is considered the graver offense than premeditated, because it doesn't need any additional aggravator, is that--
Mr. Burson: It is considered the offense that the General Assembly has determined they have a reasonable chance of deterring by increasing the severity of the penalty to death.
It doesn't necessarily mean that it's more severe in another manner, except that I think they could also conclude that the extent of harm in a felony murder is greater than in a straight, premeditated murder.
Those are the rationale that this Court has looked at in terms of defining the aggravating circumstance.
It's our position that the Tennessee General Assembly has determined that as to felony murderers, and at the general level of definition that's all that they're required to do.
Unknown Speaker: --General Burson, when did the General Assembly make this determination?
When was this statute that's at issue in this case passed?
Mr. Burson: This statute I think was in '77 or so, and--
Unknown Speaker: What if this murder had taken place before 1987, when Tison was decided?
Say you had this very same set of facts in 1980.
Could you have then defended this scheme as constitutional, because there's nothing in the Tennessee statute that requires recklessness?
Mr. Burson: --I think that the recklessness component of it certainly gives it a--
Unknown Speaker: Where does the requirement to satisfy a recklessness component come from?
Isn't it Tison?
Mr. Burson: --It comes from... yes.
Unknown Speaker: So if you didn't have Tison on the books, which wasn't decided till 1987, your statute was then unconstitutional, I assume.
Mr. Burson: Well, to the extent--
Unknown Speaker: --constitutional once Tison was decided.
Mr. Burson: --To the extent it would have applied to one who acts less than reckless, and we also had--
Unknown Speaker: But then we have no finding of recklessness in this case, do we?
Mr. Burson: --No, but I think the--
Unknown Speaker: Because there's no such instruction.
Mr. Burson: --The... we don't, but the court made it very clear, the Tennessee supreme court, that it would perform this type of proportionality review, and I think this Court said in Cabana v. Bullock that that proportionality review was not required by the jury, that it was sufficient if the appellate court applied the Tison standard.
Unknown Speaker: If you would carry Justice Stevens' analogy back, you might say that before this Court decided Enmund in 1983, maybe from 1977 to 1983 the statute was constitutional, from 1983 to 1987 it wasn't, and after 1987 it is.
Mr. Burson: Well, yes, and the Tennessee supreme--
Unknown Speaker: Of course, we don't know whether your supreme court might not have read in the Tison requirement on its own, do we?
Do we have any cases in which your supreme court declined to read in Tison before we did?
Mr. Burson: --I--
Unknown Speaker: I mean, you claim they've gone further than we have in the present case.
Surely they might on their own have gone as far as Tison before we did.
Mr. Burson: --Your, Honor, I can't say that they addressed that.
Unknown Speaker: But at least it isn't the Tennessee legislature that required the recklessness requirement.
That much we all agree on, I guess.
Mr. Burson: No, no, I'm not suggesting that.
I'm saying the Tennessee legislature applied the deterrent rationale to making felony murder an aggravating circumstance.
Unknown Speaker: The Tennessee supreme court did address the question of the relative culpability of premeditated murder and felony murder, didn't it, and it found them equal in culpability under the statute, didn't it?
Mr. Burson: Correct, and we would agree that they are equal in culpability.
Unknown Speaker: Well, aren't you... doesn't that then go back to Justice Ginsburg's question of a moment ago?
How do you explain the fact that of two categories of murder of equal culpability, the defendants convicted in the one category, premeditated, require... are subject to a narrowing requirement and those in the second category, felony, are not?
Mr. Burson: Justice Souter, our position is that the Eighth Amendment allows an aggravator to have, as a justifying rationale, deterrence--
Unknown Speaker: Well, you--
Mr. Burson: --or retribution, so you do not have to set up an aggravator based upon culpability.
Unknown Speaker: --I'm... maybe I don't understand your answer, but it doesn't seem to me that that responds to the question.
You're still, under your law, engaging in a narrowing function with respect to one category, and you're not engaging in a narrowing function with respect to the other, isn't that right?
Mr. Burson: Let me see if I could respond this way.
If the two categories in the Tennessee system were premeditated murder and the killing of two or more persons, it would be perfectly rational to have as an aggravating circumstance the killing of two or more persons as you did in Lowenfield, and so it's... what you have to look at for an aggravator, we would suggest, is the... are the objective criteria that circumscribe the class of first degree murders.
In this case, it's the conduct of felony murder.
Unknown Speaker: I still don't... maybe I'm missing a... I don't think you've answered Justice Ginsburg's question.
Mr. Burson: If you are... maybe I don't understand the question.
Unknown Speaker: I thought her question was... in any case, my question is, as the supreme court of Tennessee has construed it, the two subcategories are first degree murder of equal culpability, isn't that... is that correct?
Mr. Burson: Correct.
Unknown Speaker: Okay, and you narrow--
Mr. Burson: Comparable.
Unknown Speaker: --those convicted in the one category, you don't of those convicted in the other.
How do you explain the fact that you don't?
Mr. Burson: I don't know how to say it any other way than I have said it.
They have narrowed it and decided on felony murder as an aggravator based upon the rationale of deterrence, and that's the basis on which the legislature has done this, and this Court's Eighth Amendment jurisprudence says that's fine as far as aggravating circumstances.
Unknown Speaker: Well, you say that that aggravating circumstance is not constitutionally required anyway.
If they do it for the one but not for the other, they do it voluntarily and without Federal constitutional compulsion for the one.
You said that they don't need that further aggravator, anyway.
Mr. Burson: No, then I was misunderstood.
I think there needs to be... there needs to be an aggravating circumstance.
Unknown Speaker: I thought you said it was enough simply to have first degree murder defined the way your State defines it--
Mr. Burson: And then--
Unknown Speaker: --and you would not have any further--
Mr. Burson: --Oh, I see.
Unknown Speaker: --aggravating circumstance at all.
Mr. Burson: I think under Lowenfield that's possible, yes.
Unknown Speaker: So then whatever... even if Justice Souter's... is correct that you have an aggravating circumstance for the one type of first degree murder but not for the other, it is not an aggravating circumstance in your view that is required by the Federal Constitution.
Mr. Burson: I think--
Unknown Speaker: It's one that Tennessee chose to create on its own.
Mr. Burson: --I think under Lowenfield that's correct.
Unknown Speaker: But once you have an aggravator, don't you have to have some rationale for having it in the one case and not in the other?
Mr. Burson: I would suggest that not if it's... not as a constitutional proposition.
Not if it's not constitutionally required.
Unknown Speaker: I thought your whole position here was that felony is itself a discrete category which is a sufficient aggravator.
Mr. Burson: It is--
Unknown Speaker: I don't know why you're running away from that just a little bit in response to Justice Souter and Justice Ginsburg's question.
A felony murder is itself a separate evil that the State can punish in an aggravating way, because a felony is involved.
Mr. Burson: --Justice Kennedy, I agree with that.
Unknown Speaker: I thought that's what your position--
Mr. Burson: That is my position, and where it seems to me we are... the... we're elevating almost form over substance.
This is what Lowenfield got away from.
The point is that if we narrow either through the definitional stage or if it's as an aggravator, if we narrow the circumstances as Justice Kennedy has noted, and that is a sufficiently discrete sort of set of circumstances to guide the jury's discretion, and that's what we're after, that is what... that's what the Constitution requires.
Unknown Speaker: --Well then, do you contend it would be constitutional to have the death penalty imposed for a felony murder that the only intent... there's no recklessness involved.
The only intent was to commit a robbery.
Would that be constitutional?
To commit a robbery, and in the course of the robbery a person gets killed.
Mr. Burson: You mean, and you are an accomplice, or you are the killer?
Unknown Speaker: You are a robber, and in the course of the robbery, maybe you stumble, and you accidentally shoot the gun and the man gets killed.
That's a clear case of felony murder with no intent to kill, no recklessness, let's assume.
Would you say that could constitutionally support the death penalty?
Under your answer to Justice Kennedy, I think you'd say yes.
Mr. Burson: As the Court's formulation of the standard is now, yes, because the Court just says you have to... under the Enmund standard, you only have to kill and it doesn't require... the Court hasn't addressed a particular standard, but clearly an accomplice would have to at least be reckless before that would happen, but if you killed--
Unknown Speaker: I'm assuming no recklessness on the part of the killer.
He just had an intent to commit the felony, and all of the deterrence rationale you talked about would apply there.
Mr. Burson: --It's hard for me to believe that the Court would not apply that same recklessness standard, and I would suggest that that probably--
Unknown Speaker: But that's the extent--
Mr. Burson: --would not be upheld.
Unknown Speaker: --of your narrowing requirement under your statute.
All you have to do is be a participant in a felony murder where all you intended to do was to commit the felony.
Mr. Burson: Yes, and that's overlaid with this Court's jurisprudence on recklessness.
May I save the balance of my time for rebuttal, please?
Unknown Speaker: Very well, General Burson.
Mr. Stebbins, we'll hear from you.
Argument of David C. Stebbins
Mr. Stebbins: Mr. Chief Justice and may it please the Court:
I would like to start by clarifying a few points of Tennessee law, if I might.
First degree murder in Tennessee is defined as felony murder or premeditated murder.
All first degree murderers are death-eligible, but no first degree murderer can be sentenced to death absent proof beyond a reasonable doubt of a statutory aggravating circumstance.
All twelve of the aggravating circumstances require proof of additional elements for persons convicted of premeditated murder.
Eleven of the statutory aggravating circumstances require proof of additional elements for persons convicted of felony murder.
Only with the felony murder aggravating circumstance is there automatic elevation of one class of murderers into being subject to the death penalty above the other class without proof of anything further.
Two other points is--
Unknown Speaker: Well, is your point that that's irrational, and therefore doesn't meet rational basis review?
Mr. Stebbins: --Well, I think my point is that the Tennessee... this is what the Tennessee supreme court found to violate the Tennessee constitution.
The fact that this one class is automatically elevated... this one class is defined, excuse me, to be the morally culpably equivalent class... I'm sorry.
Unknown Speaker: Well, but does it violate the Federal Constitution so long as the narrowing within the definition of first degree murder is alone enough to comply with our narrowing requirement?
Mr. Stebbins: No, I believe it does, because the problem is we're not just talking about narrowing here, but some principled narrowing, and this is exactly what the--
Unknown Speaker: That's your point, that it's unprincipled and fails rational basis review.
Mr. Stebbins: --Yes, it fails--
Unknown Speaker: What's the last case of ours that held a State statute failed rational basis review?
Mr. Stebbins: --I can't point you to a case, Your Honor, but looking at what the Tennessee--
Unknown Speaker: Many moons.
It's been a long time.
Mr. Stebbins: --That may be, but the Tennessee supreme court here has found that it violates Article I, section 16 of the Tennessee constitution.
They've also made that finding as an independent finding, independent of any Eighth Amendment analysis.
Unknown Speaker: Well, they're free to find it violates the Tennessee constitution.
That's not what we're discussing here.
We're discussing whether it violates the Federal Constitution.
If we find that it doesn't, Tennessee can find it to violate its constitution whatever way it wants.
I think we're just discussing the Federal issues here, aren't we?
Mr. Stebbins: I understand that, but the point I would like to make first, Your Honor, if I may, is that this is an independent State ground that the Tennessee supreme court has relied on.
Unknown Speaker: Two of the three in the majority said this holding, based on Article I, section 16 of the Tennessee constitution, so two of them put it squarely and apparently solely on the Tennessee constitution, but they concurred in the principal opinion, which puts it on both grounds.
Mr. Stebbins: But I think, Your Honor, under the majority opinion that there are alternative, independent, adequate State grounds.
In... at page 4950 of the appendix to the petition for cert, the Court makes a very clear State law finding.
It says, and I quote,
"Our legislature, however, has seen fit to prohibit such duplication by statute in noncapital sentencing, and we are of the opinion that Article I, section 16 of the Tennessee constitution prohibits such duplication in capital sentencing as well. "
This conclusion they reach by looking only at the Tennessee sentencing statutes for noncapital cases, looking at the capital sentencing procedures in Tennessee, and looking at the Tennessee constitution.
There is no mention at this point of the Federal Constitution or any Federal case law.
Because of that, this is an independent and adequate State ground, and this which allows... excuse me... which prevents this Court from hearing the case, because of the independence and adequacy of the State ground, and as you look also at the second portion of the Court's opinion concerning the narrowing, the Court specifically rejects Federal case law, the rationale of Federal case law in Lowenfield--
Unknown Speaker: Mr. Stebbins, can I just interrupt you to--
Mr. Stebbins: --Certainly.
Unknown Speaker: --You made a motion on this point that I think the Court denied, and your position is fully stated in your brief, so I wonder if you're making the best use of your time.
Mr. Stebbins: I just wanted to make a couple of quick points on it, Your Honor, because at least in one other case... I'm familiar with this case in a similar situation, Ohio v. Huertas just a couple of terms ago, did dismiss the writ after argument, and most of the argument was based on a State law analysis, but I will be very brief, Your Honor.
But I would just like to make the point that in the second part of the opinion that they reject the rationale of Lowenfield as finding it inapposite under the Tennessee constitution, and under the Tennessee constitution adopt the rationale of... the non-Federal rationale announced in Cherry, in Engberg, and in Collins.
Unknown Speaker: Is the page you're referring to in the appendix to the petition?
Mr. Stebbins: Excuse me, Your Honor, I'll... the... page 61 and 62, A-61 and 62 of the appendix to the petition for cert.--
The Tennessee supreme court has found that the treatment of the felony murderer separately and differently than the equivalently defined premeditated murderers is irrational under the Tennessee constitution, and I would submit that it's equally irrational under the Eighth Amendment.
Unknown Speaker: I notice that Tennessee has as one of its aggravating factors the killing of a child under 12 years of age.
Mr. Stebbins: That's correct, Your Honor.
Unknown Speaker: If someone kills an 11-year-old, can they argue under your theory that really it's irrational to distinguish between someone who kills an 11-year-old and a 12-year-old?
Mr. Stebbins: Under my theory, no, I don't think so.
My theory is--
Unknown Speaker: What's the rationality there that's not present here?
Mr. Stebbins: --Well, there you've got something that is different from the crime itself.
The problem with the felony murder aggravator in Tennessee is it defines the crime of first degree murder.
First degree murder in Tennessee is a murder committed during the course of a felony.
You find that, the jury finds that, and they find the person guilty of first degree murder.
The jury is then told--
Unknown Speaker: But that's only one type of first degree murder.
Mr. Stebbins: --That's correct.
Unknown Speaker: So you have an aggravator which in effect says this one type of first degree murder is worse than the other type of first degree murder.
It's still an aggravator, however.
Now, you may argue that that is a rather sloppy way of achieving that result, but can you say that the result is irrational?
The State has decided that of the two types of murder that fall within first degree, one is worse than the other, and they choose to make that determination by declaring that whole class to be an aggravator.
I agree it's logically pretty sloppy, but I don't know that it's irrational.
Mr. Stebbins: Well--
Unknown Speaker: And I should think it's eminently more rational than the 11-year-old, 12-year-old dichotomy, because the State is interested in deterring felonies.
Mr. Stebbins: --But as the Tennessee supreme court found, though, that the Tennessee legislature has defined felony murderers and premeditated murderers to be equally culpable.
They are guilty of first degree murder.
Then automatically, not by any operation... just by the operation of the statute, the felony murderers are elevated up to be subject to the death penalty, when premeditated murderers that the Tennessee supreme court views as equally culpable or perhaps even more culpable are not treated worse, and the--
Unknown Speaker: Where do you... where... what cases of ours do you rely on for the proposition that there is this sort of rationality requirement in the Eighth Amendment?
Mr. Stebbins: --Well, just last term in Arave v. Creech, this Court held that there was... where an aggravating circumstance serves to distinguish those who are sentenced to death from those who are not, that the aggravating circumstance must genuinely narrow on a principle basis, and the Tennessee supreme court essentially here has said this is not principled.
Unknown Speaker: That's where you derive the rationality requirement from then, in the Eighth Amendment?
Mr. Stebbins: For one, Your Honor, yes, and I think also in Zant v. Stevens this court addressed that the aggravating circumstances where they are used to narrow the class of persons eligible for the death penalty must have some rational penalogical basis.
They must satisfy one of the concerns of this Court expressed in Furman, that the death penalty not be imposed in an arbitrary or capricious manner.
Unknown Speaker: Mr. Stebbins, maybe it would be better if we were to deal with a concrete case than to talk in these abstract categories, and let me tell you one that has been on my mind.
Let's take a robbery of a home, and the robber in case number 1 intentionally kills the homeowner in that process, and then case number 2 is a robbery, and the robber recklessly kills the homeowner in that process.
The second case, on your rationale, could not attract the death penalty... let's assume there's no other aggravator, just the felony... but the first one could.
Why does it make... why do you come... say that that's rational?
Mr. Stebbins: Well, first of all I think that's incorrect under what I'm saying.
I think in both of those situations a person could be sentenced to death, because you have a felony plus an intentional or premeditated murder.
Unknown Speaker: No, no, no, in the felony murder case you don't have any premeditated.
You have a reckless murder in conjunction with a felony.
Your argument is that that person cannot be subjected to the death penalty, but the premeditated murder with a felony could be.
Mr. Stebbins: Yes, but the premeditated murderer with nothing else, without the additional felony, could not be sentenced to death.
Unknown Speaker: I'm asking you why in those two concrete situations it isn't perfectly logical, rational, to treat them the same, to say that both are subject to the death penalty?
Mr. Stebbins: Well, very simply, in the one hypothetical, Your Honor, you've got... as I understand it, and perhaps I misunderstand your hypothetical, but you've got premeditation and something else.
You have a felony.
In the second hypothetical, you have no premeditation, no intent, or perhaps reckless intent, and you have the commission of a felony which raises it up to be the equivalent of premeditated murder in the first place, and you have nothing in addition to distinguish that murderer from the first murderer, or to make him worse.
Unknown Speaker: But why can't the State think in terms of dangerousness, in terms of deterrent, it wants to deter that reckless action as much as the premeditated action?
Mr. Stebbins: That's my point exactly, Your Honor.
If they are treated equally, then I would have no complaint here, but they're not.
They're treating the reckless and... first of all, if I may make a point, is that in this case and prior to 1989 in Tennessee there was no reckless requirement, and no recklessness has been made.
Unknown Speaker: In my hypothetical you are not treating them equally, and you say that's okay, and that I don't understand.
Reckless plus robbery, no death penalty.
Premeditated plus robbery, death penalty.
That's what you say is fair and rational.
Mr. Stebbins: Yes.
I mean, the problem I'm making, though, is that, not the premeditation plus robbery, a premeditated murder with nothing else would satisfy the death penalty, would get a death penalty here.
Reckless, which only becomes the equivalent of a premeditated murder because it was committed during the course of a robbery, is then automatically subjected to the death penalty, whereas with the premeditated murder, who is already all by itself a highly culpable crime because of the definition of premeditation--
Unknown Speaker: Your point is that it's irrational, constitutionally impermissible, for the State to say premeditated and reckless are on the same line.
Mr. Stebbins: --No.
I'm sorry, Your Honor, that's not my point.
My point is it's constitutionally impermissible to treat the reckless murderer worse than the premeditated murderer, because the reckless--
Unknown Speaker: --In my hypothetical, you're saying it's necessary to comport with the Constitution to treat the felony murder better.
Not equally, but better--
Mr. Stebbins: --I--
Unknown Speaker: --because in my hypothetical the premeditated robber is subject to the death penalty, the reckless robber is not, so the reckless robber is being treated better, not the same.
Mr. Stebbins: --But the premeditated robber is being treated worse because of there is an additional element proven in the crime... the robbery.
With the reckless robber, he is being elevated already to being the equivalent of the premeditated murderer merely by the use of the robbery, and then he's elevated up above that by the use of the robbery also.
A reckless murder by itself, without the robbery, would not be death-eligible in Tennessee.
Only because it's committed during the course of a felony does a reckless or unintentional murder become the equivalent of premeditated murder in the first place.
Unknown Speaker: But you would agree, would you not, in my two hypothetical cases, that your answer is yes, in that situation you must favor the felony murderer by making that reckless robber not subject to the death penalty where the premeditated robber is?
Mr. Stebbins: Again, Your Honor, I appear to be missing your point on this, or I'm not explaining myself well.
If you have a premeditated murder... if I may make a hypothetical all by itself--
Unknown Speaker: Well, why don't you just stick with my hypothetical, and tell me... we have a robbery of a home.
The homeowner is killed.
In one case the killing was premeditated, in the other one it's reckless.
I take it on your argument that the State could not constitutionally subject the reckless robber to the death penalty, or am I misunderstanding your argument?
Mr. Stebbins: --No, I believe that's correct, Your Honor.
Unknown Speaker: But the State could subject the premeditated robber to the death penalty.
Mr. Stebbins: That's correct, Your Honor.
Unknown Speaker: So if yes to those questions, to both, then you're saying it's constitutionally required to favor the felony murderer.
Mr. Stebbins: Again, it's not favoring the felony... reckless felony murderer, Your Honor.
The reckless felony murderer goes in to rob the home with no intent.
He is raised up to be the equivalent of the premeditated murderer merely by the proof of the robbery.
The premeditated murder all by itself is death-eligible.
The reckless killer is not death-eligible absent adding the robbery on top of that.
That raises it up to be first degree murder.
Unknown Speaker: So you're saying that in a... let's take a totally hypothetical situation, unlike Tennessee, that a State cannot make a felony murder that qualifies under Tison's recklessness, they cannot make that a capital offense without some aggravating circumstance?
Mr. Stebbins: I believe that's true, Your Honor, and I also believe--
Unknown Speaker: Now, what case would you rely on for that?
Mr. Stebbins: --Your Honor, I would say that if you look at this Court's holding in all of its holdings from like, Gregg, and Zant, and Creech last year, whenever there has been a definition by a State that is as broad as this, that includes felony murder with no intent, it includes plain, premeditated murder as the basis for death eligibility, that every State where this Court has looked, it has required proof of some additional--
Unknown Speaker: But I asked you for a case from this Court that supports the answer that you just gave, and to say that the States have required something more doesn't necessarily mean that the Constitution requires it.
Mr. Stebbins: --I believe, though, if you look at this Court's opinion in Lowenfield, for example, Lowenfield says the States may do two things, they may broadly define death-eligible crimes, and if they broadly define them, i.e. saying felony murder or premeditation, then they must have an aggravating circumstance that narrows the class, or they may very narrowly define the class of death-eligible murderers as Texas and Louisiana have done.
If they do that, then there is no constitutional requirement for further narrowing.
Unknown Speaker: Well, so don't you think it represents a sufficient narrowing in the terms that Lowenfield used that if they say... if the State says, from all homicides we are going to choose premeditated murder and felony murder that meets the Tison qualification, and we're not going to have aggravating circumstances.
We're going to let you show all the mitigating evidence you want.
Mr. Stebbins: This Court simply has never approved such a scheme.
Unknown Speaker: Well, it may never have, but has it ever disapproved it?
Mr. Stebbins: No, the State has never disapproved it, either, but again, if you look at this last term in Creech, this Court analyzed the Idaho statute and looked at it and declared it very broad, and the Court went on to look at the aggravating circumstance that was at issue in that case and found that under the Idaho scheme and under the Eighth Amendment, that it was necessary for the aggravating circumstance to narrow that class of death-eligible people.
Unknown Speaker: Mr. Stebbins--
Mr. Stebbins: The... yes.
Unknown Speaker: --you don't need aggravating circumstances at all.
I mean, we've said you can narrow... you don't have to narrow at the jury stage, you can narrow at the definition stage, so we don't really need aggravating circumstance, isn't that right?
Mr. Stebbins: If the definition is sufficiently narrow--
Unknown Speaker: Well, let's assume that what Tennessee has is this situation.
It defines first degree murder as all murder that is committed with intent or reckless disregard.
All killing with intent or reckless disregard.
Then it defines as aggravating circumstances premeditation or felony murder, murder in the course of a felony.
Would that be constitutional, in your--
Mr. Stebbins: --I... I... no, it would not, Your Honor.
It would not--
Unknown Speaker: --It would not.
Mr. Stebbins: --It would not... two reasons.
One, it would not narrow the class at all.
It would include every one of those persons, basically.
Unknown Speaker: What... what... what?
Every killing that is done with intent or reckless disregard is done with either meditation or in the course of another felony?
That narrows it a lot, it seems to me.
Mr. Stebbins: Perhaps I misunderstood your hypothetical.
I thought you defined it so that that would basically--
Unknown Speaker: It's a very broad definition of first degree murder.
It includes all murder with intent or with reckless disregard.
The case goes to the jury, and the jury is told, you may impose death if you find an aggravating circumstance of premeditation or of killing in the course of a felony.
Mr. Stebbins: --I don't believe that this Court would find that that provides adequate guidance for the jury or have sufficiently narrowed the class.
I... no case this Court has held since 1972 has found--
Unknown Speaker: Well, that's the right answer for your case.
I mean, you would have to say that that's bad in order to say that this is bad, because what this boils down to is the same thing.
Mr. Stebbins: --Yes.
The question is, how broadly--
Unknown Speaker: Mr. Stebbins, I thought Tennessee had not opened up every felony murder to the death penalty but only the commission of murder in the course of committing certain named felonies.
Mr. Stebbins: --That's correct, Your Honor, there's eight--
Unknown Speaker: So there has been a narrowing.
It isn't all felonies, it is certain named felonies.
Mr. Stebbins: --There has been... yes, not every felony is included in that, but every felony that is included in the definition of first degree murder is also included in the aggravating circumstance.
Unknown Speaker: Yes, but of course, Lowenfield says that the narrowing can be done at the guilt phase.
I mean, there's no... we've never said there is a requirement that it has to be done at the sentencing phase, have we?
Mr. Stebbins: No.
No, there isn't, Your Honor, and the Court has not required that where there has been a sufficiently narrow definition of first degree murder or death eligibility, and I would submit that in... last term, the case that this Court reviewed from Idaho, that the definition of death eligibility there was considerably narrower than what Tennessee has, and yet this Court still required the aggravating circumstances in that situation to genuinely narrow the class and provide some guidance.
Unknown Speaker: But in Arave, Mr. Stebbins, the challenge was that the aggravating circumstance was too vague, wasn't it?
It wasn't whether you had to have an aggravating circumstance.
Mr. Stebbins: Well, the Court went on, and after determining vagueness to discuss and state very plainly that not only must the aggravating circumstance be definite, but it must genuinely narrow, and do so on a principled basis, citing Zant v. Stevens primarily for that proposition, and this Court has held where a State uses aggravating circumstance to genuinely narrow... whether they have to or not, but where they do, they have to narrow in a principled manner and they have to define a class of persons that's more culpable than another class.
Here, you have one class of equally culpable, as defined by the Tennessee legislature, first degree murderers automatically subject to the death penalty, and the other class is not so automatically subjected to the death penalty.
Unknown Speaker: Mr. Stebbins--
Mr. Stebbins: Yes.
Unknown Speaker: --just a question of Tennessee law.
Is a nonpremeditated killing in the course of a felony, other than those listed, murder under Tennessee law?
Mr. Stebbins: A nonpremeditated killing during the course of an unlisted--
Unknown Speaker: An unlisted felony.
Mr. Stebbins: --The fact that it was committed during another felony that's not listed in the first degree murder statute would have no effect on it.
There is no second degree felony murder in Tennessee.
Unknown Speaker: So it wouldn't be murder at all.
Mr. Stebbins: Correct.
It might be involuntary manslaughter, but it could not be murder.
Unknown Speaker: Well, how... are you sure that's the correct answer, Mr. Stebbins?
Certainly, at common law, Justice Souter's hypothesis, intentional but not premeditated killing was traditional second degree murder.
Tennessee doesn't regard that as murder?
Mr. Stebbins: Perhaps I got the hypothetical wrong.
Unknown Speaker: I may have misunderstood his--
--No, my hypo was, it is a nonpremeditated killing, and it is not committed in the course of one of the listed felonies.
Can that be murder under Tennessee law?
Mr. Stebbins: If it was an intentional murder, it would be murder.
Unknown Speaker: So there is a narrowing, then, that does indeed go on.
Mr. Stebbins: Yes, but the fact it would require intent, and the fact that a nonlisted felony was also committed would have no effect at all on the determination that it's murder.
Unknown Speaker: The fact of the felony would be irrelevant, but it would still be classified as murder if it was an intentional killing.
Mr. Stebbins: If it was an intentional killing, it would be classified as second degree murder, that's correct, Your Honor.
If the Court has no further questions, thank you.
Unknown Speaker: Counsel, as I understand your argument, just before you subside, Justice Ginsburg asked you a question about a robbery with an intentional murder and a robbery with a reckless murder.
I take it... let's have a third hypothetical.
Let's say there's just a sniper who does not enter the house.
He kills the homeowner intentionally.
That person must be subject to the death penalty only if there is an aggravating circumstance, correct?
Mr. Stebbins: That's correct.
Unknown Speaker: And what you're saying is they're equally culpable, and that this is the differential that's unconstitutional.
So you have to say, basically, that a felony is not a sufficient aggravator.
Mr. Stebbins: I'm saying a felony is not a sufficient aggravator where the underlying crime is felony murder.
Unknown Speaker: So you're not challenging it as an aggravator for the premeditated--
Mr. Stebbins: No, I'm not, Your Honor.
I'm not making that point at all.
The felony is a valid aggravator if the underlying crime is not felony murder the only constitutional problem with this is it's... well, because it elevates with nothing further.
Unknown Speaker: --Going back to Justice Ginsburg's hypothetical about a felony murderer who in one case is reckless and in the other case deliberately kills--
Mr. Stebbins: Yes.
Unknown Speaker: --would you say that it's irrational to say that the one who is reckless is less culpable than the one who killed deliberately?
Mr. Stebbins: Is it irrational to say that the... no.
In fact, traditionally the one who is reckless has killed recklessly has been held to be less culpable than the one who has killed premeditatively.
Unknown Speaker: Would you say the contrary view would be irrational, and if you don't say it, why don't you say it?
Mr. Stebbins: Well, yes, I would.
I think arising out of many years of jurisprudence is that felony with intent, or with... no intent, or with recklessness, the only way they are made as equally culpable as a premeditated murder is through the fact of a felony.
This elevates them to the equivalent of a premeditated murder--
Unknown Speaker: Surely--
Mr. Stebbins: --and that's the way the Tennessee system operates.
Unknown Speaker: --Surely you're not suggesting that every time a State creates an aggravator it is acting unconstitutionally if it has not included as an aggravator something that is even worse than the aggravators it has included.
Is that what you're arguing, that unless the State comes forth with a full-blown system of all aggravators in their proper--
Mr. Stebbins: Absolutely not.
That's not what I'm arguing.
Unknown Speaker: --Well, they put one aggravator here.
There may be things that are even worse.
Mr. Stebbins: Well, what the Tennessee supreme court has said, though, is that they can't do that under the Tennessee constitution.
It's irrational under the Tennessee constitution regardless of whether it is under the Eighth Amendment.
Unknown Speaker: Thank you, Mr. Stebbins.
Mr. Stebbins: Thank you.
Unknown Speaker: General Burson, you have 3 minutes remaining.
Rebuttal of Charles W. Burson
Mr. Burson: Thank you, Mr. Chief Justice.
First, it's our position that following Lowenfield, that whether you call it an aggravator, if it's... if the circumstances are described in the offense itself that meet the goal of narrowing the jury's discretion, or if they're described in an aggravator, that fulfills the Eighth Amendment purpose--
Unknown Speaker: Do you hold--
Mr. Burson: --and we would suggest--
Unknown Speaker: --the part of Lowenfield that says to pass constitutional muster a capital sentencing scheme must genuinely narrow the class of persons eligible for the death... you agree with that, don't you?
Mr. Burson: --Yes, and we would suggest that this does.
Going to Justice Ginsburg's hypothetical, this hypothetical proves the deficiency in the Tennessee court decision.
Yes, both the reckless killer and the intentional killer in the course of a robbery, house robbery, are subject to the death penalty.
There's nothing constitutionally that says they shouldn't be subject to the death penalty, and Tennessee did not... this is the point.
They did not invalidate the felony murder aggravator, or the felony murder aggravating circumstance.
What they have done is exactly what the last part of the discussion was.
After saying in the opinion, and after this Court has said previously, particularly in Tison, that a reckless killer can be equally culpable to a premeditated killer, the Tennessee court, in discussing the constitutionality of death for felony murder, said the exact same thing, and now what they're suggesting is that you've got to... you are more culpable in some way if the murder was premeditated.
It would have been one thing if they had invalidated the felony murder aggravator, or the use of felony murder as a death-eligible device, but they didn't, and that is the illogic of the opinion, starting from the premise that they are equally culpable.
Unknown Speaker: General, do you think that Tison holds that recklessness is equally culpable with intent, or does it merely hold that the recklessness in that case was sufficient to cross the constitutional threshold?
Mr. Burson: I think it's clear in the opinion of the case that what it said is that recklessness could be equally culpable to premeditated murders, and there were a number of examples, and this case, this case proves that point.
There could be--
Unknown Speaker: In that case there were three other aggravating circumstances--
Mr. Burson: --In this--
Unknown Speaker: --in Tison.
Mr. Burson: --Yes.
In this case there was another aggravating circumstance of heinous, atrocious, and cruel.
Unknown Speaker: Your argument doesn't depend on that.
Mr. Burson: It certainly doesn't, but if this killing were reckless, if this person plunged a knife into the chest of this person recklessly and not with premeditation, then that certainly proves the point that this recklessness could rise to the culpability of any intentional killing, or any premeditated killing.
Thank you very much, Mr. Chief Justice.
Chief Justice Rehnquist: Thank you, General Burson.
The case is submitted.