Cases by Issue - Cruel and Unusual Punishment

Kansas v. Marsh - Oral Argument

Fri, 09 Jan 2009 14:48:55 +0000

Case:

Kansas v. Marsh

Media File:

04-1170_20051207-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Phill Kline

Chief Justice Roberts: We'll hear argument next in Kansas v. Marsh.

General Kline.

Mr. Kline: Mr. Chief Justice, and may it please the Court--

The Court has never held that a specific structure for weighing aggravating and mitigating factors is required by the Eighth Amendment.

Yet, this Court has consistently held that all that is required by the Eighth Amendment is for States to afford an opportunity to jurors to consider all mitigating evidence relevant to determination of a sentence other than death.

The Kansas statute, it is undisputed in this case, allowed the respondent to introduce all such evidence and that the jurors, under Kansas law, are specifically instructed to consider all such mitigating evidence on an individualized basis.

Justice Souter: General, may... may I... I'd like to pose a question which at least gets to the nub of the issue, as I see it, and... and get your response to it.

The premise of my question is this.

We... we generally regard mitigation evidence as favoring life, aggravation evidence as favoring death.

We've got a case in which the... the assumption is that they are evenly balanced.

The... the pans of the scale are exactly even on that.

Kansas says in that case the jury shall return the verdict of death.

If we are going to demand, as we have said that we're going to demand, that the determination... that the death penalty determination would be one of what we have called reasoned moral judgment, then what has to be supplied in order to make the Kansas provision consistent with reasoned moral justice, it seems to me, is a presumption in favor of death.

Other things being equal, there is a presumption in favor of death.

And my question is, am I correct in saying that in order to hold your way, we have to hold that the Eighth Amendment... it is consistent with the Eighth Amendment to presume the appropriateness of death, other things being equal?

Mr. Kline: As the Court... yes.

As the Court has done in Walton, the standard in the--

Justice Souter: You... you agree that's... that's a proper way to look at the issue then.

Mr. Kline: --Well, to take the issue in its total context and refer to the instructions and the totality of what the jury is instructed, I would disagree that there is a presumption of death--

Justice Souter: Then how do you get off the dime?

Mr. Kline: --The jury is given in the instruction, instruction number 4 and instruction number 5, a direction as to the effect of their reasoned moral judgment.

Justice Souter: Yes, but the... the direction, as I understand it, is that if mitigation and aggravation are even, then the only way to come to a conclusion is to say, as the statute does, because the mitigation does not outweigh the aggravation, you should return a verdict of death.

And that seems to me another way of saying there is a presumption that if aggravation and mitigation are equal, that the penalty should be death.

Mr. Kline: Instruction number 5 does instruct the juror, Justice Souter, that if the State meets the burden of proving beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors, then the jury shall sentence the defendant to death.

Justice Scalia: The State has made a judgment that this particular offense... what's it called?

Aggravated murder, you know, whatever--

Mr. Kline: First, they have to be convicted, Justice Scalia, of capital murder.

Justice Scalia: --Capital murder, as its name implies, warrants a judgment of death unless there are mitigating factors that... which indicate that that is not proper.

Mr. Kline: That is correct, Justice Scalia.

Justice Scalia: That's a moral judgment, isn't it?

Mr. Kline: That certainly is, and--

Justice Scalia: And even if the State had said the opposite, it... it is a... still a State prescribed moral judgment.

If the State had said capital murder warrants a judgment of death only if the mitigating factors outweigh the aggravating factors, that's still a State prescribed moral judgment, isn't it?

Mr. Kline: --That is correct.

Justice Breyer: And can... can you go back to Justice Souter's question for a minute?

Because the way I'm thinking about this, I'm making two assumptions that I'd like you to make, first, that there could be such a case, which I very much doubt, but... but this is a lawyer's hypothetical, this whole thing, in a sense.

But I'll make the assumption there could be such a case.

Second, I will assume that our case law leaves this open, a matter that can be argued.

But suppose that we do make that assumption for the moment.

Then what I'm thinking of is this made up case is the case of the following.

We have aggravating factors and break them down into molecules on a scale, and for every molecule of aggravation here, there is a molecule of mitigation there, so that the juror who is very conscientious ends up with the same number of molecules of equal weight on this scale.

And in our made up instance, Kansas says, if that's the situation, you must say death.

Now, if that's the case, how would you reconcile that with a view of the Eighth Amendment that says if you're going to sentence someone to death, there has to be something special about his case that means it's somewhat worse than the ordinary case because, after all, for every molecule of specialness that warranted death, we have a molecule of mitigation that doesn't?

So that's where I am, trying to get the cases out of it and trying to take very seriously the hypothetical that is before us.

Mr. Kline: There... thank you, Justice Breyer.

There are several considerations and steps that must be approached and proven by the State before we get to that actual equation.

First of all, the State follows the guided discretion standard of this Court, as laid out in Furman and its progeny, to a very narrow definition of what capital murder is.

In fact, the Kansas death penalty statute is one of the most narrow in the Nation.

And then past that point to the sentencing jury, the State must prove beyond a reasonable doubt at least one of eight specific aggravating factors exist with jury unanimity.

And then past that point, Kansas has complied with this Court's requirement under the Eighth Amendment for a juror to consider and give effect to all mitigating evidence relevant to a sentence other than death and that instruction is specifically pointed out in your appendix, pages 23 through 28.

Furthermore, the juror is--

Justice Scalia: Well, the Furman... the... it's hard to tell where the voice is coming from, I know.

We ought to get that fixed.

[Laughter]

The Furman narrowing is produced by the very first part of subsection (e).

If, by a unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in... in section 24-4625 and amendments thereto exist... that's the Furman.

Mr. Kline: --That is correct, and--

Justice Scalia: And then beyond that you say if that is found, then the jury has to find that the existence of such aggravating does not outweigh.

Mr. Kline: --That is correct.

And that... that is how it complies with your hypothetical, Justice Breyer.

Justice Breyer: Well, you see, my hypothetical is designed to cut free of the language of the cases.

I have no doubt you can go through the language and show that.

And it's designed to say, but the very point of those cases is you do not send someone to death unless the jury decides that the circumstances here make him somewhat worse, at least one molecule worth of worse, than the typical person.

And given the evenness of the balance, I don't see how we can say that, though I grant you, when you go back to those words in the cases, you're right.

Mr. Kline: Well, the guided discretion of this Court has indicated that the State must be able to... and a juror... differentiate between a defendant who is convicted of the same crime as to the... and sentenced to life as the defendant who is sentenced to the same crime and sentenced to death.

And that is laid out, as Justice Scalia pointed out, in the definition of capital murder and the requirement of aggravated factors.

Chief Justice Roberts: Of course, the... the instructions don't tell the jury to weigh the molecules.

They tell the jury that the State has to prove beyond a reasonable doubt that the mitigating molecules do not outweigh the aggravating molecules.

Mr. Kline: That is correct.

Chief Justice Roberts: And how likely is it, if you have a jury who thinks the... a juror, who thinks the molecules are precisely balanced, is going to conclude that the State has carried its burden of proving beyond a reasonable doubt that the 50 here don't outweigh the 50 here?

Mr. Kline: Mr. Chief Justice--

Chief Justice Roberts: It's a theoretical proposition--

Mr. Kline: --Mr. Chief Justice, we are dealing with a hypothetical that we believe does not exist in jury deliberations.

A juror steps back and decides whether they can live with the decision that is before them and then decides whether the death penalty is warranted.

And in fact, Kansas law leads them to that reasoned moral decision.

In Kansas law, in instruction number 4, which again is laid out in your appendix, instructs the juror that mercy, in and of itself, is sufficient to determine a sentence other than death.

Justice Kennedy: Well, let me ask... ask you this.

As a... rather than presumptions, can we look at this case as a matter of shifting burdens of proof?

I... I take it the Constitution does not require the State to introduce mitigating evidence.

That's... that's the responsibility of the accused.

Mr. Kline: That is correct.

Justice Kennedy: And so what we're saying here is that when a State shows that the mitigators do not outweigh the aggravators, then it's the defendant's/accused's burden to go forward and show that they do.

Mr. Kline: Except... you're correct, Justice Kennedy, except that the burden on the State is beyond a reasonable doubt to demonstrate that, the highest burden allowed by law.

And beyond that burden that was in the Arizona statute, which was functionally identical to the Kansas law, that was presented in this... to this Court in Walton v. Arizona, and this Court rejected that very argument in that case.

As you may recall, the Arizona law was that there was a responsibility for the defendant to demonstrate that mitigating factors were sufficiently substantial to call for leniency.

The Arizona Supreme Court had decided that that meant that the mitigating factors must outweigh the aggravating factors.

And this Court accepted that case because of a conflict between the Ninth Circuit which held, as the Kansas Supreme Court did, in Adamson v. Ricketts, that that was an unconstitutional violation of the Eighth Amendment.

This Court resolved that conflict, and in fact, States relied on that resolution, as did the Kansas legislature, in articulating the very standard except Kansas goes further and keeps the burden on the State.

Justice O'Connor: Yes.

In Arizona, the burden was placed on the defendant, was it not--

Mr. Kline: That is correct, Justice O'Connor.

Justice O'Connor: --to... to prove the mitigation?

And yet, the Court upheld that even in the equipoise situation.

Mr. Kline: That is correct, Justice O'Connor.

Justice O'Connor: Over a dissent.

Mr. Kline: Correct.

Justice Blackmun's dissent.

Justice O'Connor: So Kansas does not put the burden on the defendant.

Mr. Kline: Not at any stage of the proceeding.

The burden remains on the State to prove beyond a reasonable doubt.

Justice Kennedy: Well, but... but I take it the State has no duty to adduce mitigating factors.

Mr. Kline: It is incumbent upon the defendant, Justice Kennedy, to bring forth factors in mitigation.

The standard, though, in introduction is relevancy, and Kansas has met the... the requirements of this Court, as it relates to the specific sentencing or individualized sentencing structure, by allowing the juror to consider all evidence relevant to the determination of a sentence other than death.

Justice Stevens: Of course, that means they comply with Lockett.

I want to ask you one question that goes back to your colloquy with Justice Souter and Justice Scalia.

Justice Scalia pointed out that the State has made a moral judgment on a certain state of facts, the death penalty shall be imposed and which you agreed with.

And that was true in the cases back in 1975 and '6.

There were some State statutes that mandated death based on the moral judgment of the State in certain circumstances.

I think one was a North Carolina statute.

Do you ask us to reexamine those cases?

Mr. Kline: No, Justice Stevens.

Actually the State's position is consistent with the previous decisions of this Court in this fashion.

Justice Stevens: It... it does not rely on the proposition that there's a situation in which there's a mandated death penalty which is perfectly okay.

Mr. Kline: No, because there is a requirement upon the State in the sentencing phase to prove factors in aggravation with jury unanimity beyond a reasonable doubt that set aside this particular act in a different framework than those who commit capital murder and are convicted of capital murder.

If the State does not meet that burden--

Justice Stevens: Of course, the aggravators... it would be permissible for a State to include the aggravators necessary to narrow the category in the definition of the crime itself.

Mr. Kline: --This Court has held that it does.

And Kansas has a very narrow death penalty in the definition of capital murder and also the specified aggravators that the State must prove.

Justice Stevens: But you would say that if the State met that burden and there was no mitigating or no substantial mitigating evidence, it would be permissible to... for the State to mandate the death penalty.

Mr. Kline: Just as it is in Walton v. Arizona.

Justice Stevens: The answer is yes.

Mr. Kline: Yes.

The answer is yes, Justice Stevens.

Justice Stevens: And you think that's fully consistent with the North Carolina case.

Mr. Kline: It is not fully consistent, I don't believe.

It is consistent with the Walton case in that this Court said a mandatory death penalty is not unconstitutional, as long as the State differentiates between those convicted of the same crime and who are sentenced to life and those who are convicted of the same crime and sentenced to death.

Kansas clearly does that in the requirement that the State prove beyond a reasonable doubt that one of at least eight specific statutory aggravating factors exist in the case.

But Kansas goes further.

Unlike in Walton v. Arizona, the burden remains on the State to also prove that the mitigating evidence proffered by the defendant who has the lowest threshold allowed by law, and all that is required by this Court... that is relevancy... that all of that evidence does not outweigh--

Justice Stevens: Well, it... that's the way Justice Blackmun interpreted the majority, but the majority didn't quite say that because it said the burden on the defendant was to prove sufficient mitigation to justify something other than the death penalty.

And conceivably one could have met that burden with substantial mitigating evidence that came out even.

Mr. Kline: --Well, the--

Justice Stevens: Under the majority's opinion... now, you're dead right about what Justice Blackmun said, but--

Mr. Kline: --Justice Stevens, you are correct.

The majority didn't specifically address that, but they also analyzed the case, much as Justice Kennedy just did, in saying that really what we're talking about is whether the State eventually at some point, once it has met the requirement of the individualized sentencing requirements of this Court, can say that death is appropriate.

And the answer in this Court's jurisprudence has been clearly yes once we are able to set aside this defendant from other defendants convicted of the same crime.

Justice Stevens: --But you would agree that it would be consistent with the... the text of the majority opinion to say it really meant they have to prove enough mitigating evidence to make death the inappropriate sentence, which could be less than... even a 50/50 balance.

Mr. Kline: Arguably, yes, Justice Stevens.

And that is the language of the Arizona statute, but it would fly in the face of the interpretation of the Arizona Supreme Court, as well as the Ninth Circuit Court of appeals in Adamson v. Ricketts which, subsequent to the Walton decision, held that Walton controlled and allowed the potentiality of equipoise to be constitutional.

Now, one thing I would like to--

Justice O'Connor: Are you going to address the other questions?

I think we've added a question about whether the Kansas Supreme Court's judgment was adequately supported by an independent State ground.

And I'm not sure that this has been adequately addressed.

Do we have jurisdiction here?

The... the Kansas Supreme Court vacated the capital murder judgment and remanded it and said it would have done it anyway because of the State law evidentiary error concerning admission of third party guilt evidence.

So does that independent ground mean we don't have jurisdiction here on this thing?

Mr. Kline: --No, Justice O'Connor, there is not an independent and adequate State ground for this decision.

It is undisputed that the Kansas Supreme Court relies on this Court's interpretation of the Eighth Amendment for the interpretation of the cruel or unusual punishment clause of the Kansas constitution.

Justice O'Connor: But there was another ground.

Mr. Kline: Yes, but it is not adequate and independent.

The argument of the respondent is that the constitutional savings doctrine and severability arguments are independent and adequate, and by their very nature, they are dependent rather than independent.

The Kansas Supreme Court engaged in a... and I quote from the decision... a full reexamination of the Eighth Amendment jurisprudence in coming to the conclusion in paragraph 25 of the syllabus, which is the law of the case in Kansas under Kansas law, that the Kansas death penalty statute is unconstitutional on its face.

That was the first such holding in Kansas jurisprudence history finding that determination.

Previously, 3 years earlier, the court had found the death penalty statute constitutional as construed, and as this Court knows, you will not accept jurisdiction of a State court's interpretation or construction of a State law.

So, therefore, this is the first opportunity that the State has had and I would say the last.

Justice O'Connor: Well, but was this... was this case remanded for a new trial?

Mr. Kline: It is, Your Honor.

Justice O'Connor: And presumably, if there is a conviction and a sentence, you could come back here again by way of a cross appeal.

Mr. Kline: That would be incorrect, Justice O'Connor.

Kansas is prohibited.

The prosecutors are prohibited and limited of the right of appeal in Kansas law as in most States.

And... and this Court had a similar case in Neville v. South Dakota in which you construed South Dakota law as it relates to limiting the prosecution's ability to appeal and, through that construction, identified in an interlocutory basis, when the lower court passes on a constitutional measure that has import for this Court, that the inability of the State to be able to pursue that case renders jurisdiction under 28, section 1257.

So--

Justice Ginsburg: If I... if I understand what the situation is, there is no death penalty in Kansas as a result of this decision.

Mr. Kline: --That is correct, Justice Ginsburg.

There is no death penalty.

The highest court of our State has spoken and stricken it down as unconstitutional on its face.

Justice Ginsburg: Has there been any movement in the legislature to change the law so you won't be in this situation where there is no death penalty?

Mr. Kline: Justice Ginsburg, there's significant discussion in the legislature, but that discussion is somewhat mixed, as you might imagine, and some were concerned that action might moot this case.

Right now there are 12 pending capital murder cases in Kansas which, if this Court does not reverse the Kansas Supreme Court, the State will not be able to seek capital murder charges and the death sentence in those cases.

Justice Stevens: Well, that wouldn't be true if you amended the statute, would it?

If you... if they amended the statute to take the 50/50 problem out of it, which wouldn't seem to me all that difficult, you could still impose the death penalty on these other 12 people who haven't been tried.

Mr. Kline: It is our position, Justice Stevens, since their crimes were committed prior to any act of the legislature, we would be prohibited from seeking the death penalty.

Justice Stevens: Because of an ameliorating amendment to the death penalty statute?

Mr. Kline: That is... that is our... our position.

It would have to take an entire--

Justice Stevens: I doubt if you'd take that position if they did it.

[Laughter]

Mr. Kline: --Well, Justice Stevens, if you put me in that position, I will be an advocate for the State.

However, it is our position, as Justice Ginsburg alluded to, that the State has no death penalty and it would take a complete reenactment of the death penalty for the State to have one.

And that is borne out in case law.

There is no uncertainty as it relates to the ability of the State to seek appeal in charging death once there is no death statute that is available.

The references in Kansas law to KSA section 22-3602(b) are a very settled area of the law.

The respondent argues that subsection (1) of that statute would allow us an opportunity to preserve this issue below.

However, that only relates to the State being able to appeal charging documents, and the definitions of those documents are very specific in Kansas law.

Furthermore, subsection (3) states that a prosecutor can reserve an issue, but case law is very clear, and that is only if the Kansas Supreme Court sees that issue as important for the administration of justice, the uniform administration of justice, in the State, and has interpreted that to mean only where guidance of the supreme court is necessary.

It is not a method for moving for rehearing.

The Kansas Supreme Court rejects that.

We moved for reconsideration and reconsideration was not granted.

If this Court embarks, as the respondent asks it to, it will put in jeopardy 12 capital murder cases and prevent 12 capital murder cases from being pursued in Kansas.

It will effectively strike down the laws of seven other States that have functionally identical statutes as Kansas.

And furthermore, it would effectively call into question the laws of five other States that do not even require any weighing mechanism whatsoever.

This Court has never gone further and required a specific mechanism of weighing aggravating and mitigating circumstances and has relegated that duty, as it should, to the States as long as the juror has the opportunity to make the reasoned moral decision based on the consideration of all mitigating evidence relevant to a decision other than death that relates to the character, the background of the defendant, or the circumstances of the offense.

And if you would look in your joint appendix on pages 25 and 26, you will see the instructions that the State of Kansas gave in this case, and it is undisputed that the respondent's presentation of mitigating evidence was presented to the jury in full, and additionally, the jury was specifically instructed to consider and give weight... I'm sorry.

It's pages 24 and 25... specifically instructed to give weight to all of that evidence.

Pages 24 and 25.

I am referring to instruction number 4.

And you will see the delineation beginning on page 25 of all the mitigating evidence that was admitted as relevant in this case.

And I would also say that Kansas continues to bear a greater burden in its consideration... for the juror's consideration in that the juror is instructed on paragraph 2 of instruction 4 that mercy in and of itself is sufficient... is sufficient... to outweigh the aggravating evidence presented by the State.

So contrary to the--

Justice Scalia: I have no idea what that means.

I mean, you... you go into this very elaborate system, you know, molecules on one side, molecules on the other.

[Laughter]

And then you throw the whole thing up in the air and say mercy alone is enough.

I mean--

Mr. Kline: --Justice Scalia, I think it is... it is a default for a life sentence.

And I believe it is certainly an acknowledgement that what really happens here is a juror steps back, after the consideration of all the evidence that this Court requires under the Eighth Amendment, and decides what they can live with, a sentence of death or a sentence of life.

And one juror who has doubt can extend mercy.

And, Mr. Chief Justice, if it may please the Court, I'd like to reserve the remainder of my time.

Argument of Rebecca E. Woodman

Chief Justice Roberts: --Thank you, General.

Ms. Woodman, we'll hear now from you.

Mr. Woodman: Mr. Chief Justice, and may it please the Court--

I'd like to devote the bulk of my time to answering the State's arguments on the merits because the constitutional issue presented by the Kansas capital sentencing statute is actually quite different than the State and its amici would have it appear.

Their arguments rest on an erroneous assumption about the way the statute operates and the real issues that its operation raises.

Under the Kansas formula, prosecutors can and do urge jurors not to persevere in their decision making if they are undecided regarding the balance of aggravating and mitigating circumstances.

In other words, if the decision is too hard to make, the sentence must be death.

The formula--

Chief Justice Roberts: But is it reasonable to suppose that one of those cases where it's too hard to decide is when there are 50 molecules on one side and 50 on the other?

In other words, it would seem to me that that's an easy case to say that the State has not met its burden of proving beyond a reasonable doubt that the mitigating factors don't outweigh the aggravating ones when the evidence is evenly balanced.

Mr. Woodman: --No, Your Honor.

I think that it's not right to think of this in terms of mathematical formulas, molecules on one side or the other.

This is a subjective, qualitative determination that the jury makes, and whatever capital sentencing statute a State chooses, States are free to choose whatever structure they see fit to determine whether death is an appropriate sentence.

However, States are not free to enact a statute that doesn't ensure a reliable determination that death is an appropriate sentence, and that's what we're dealing with here.

It's a qualitative judgment and one can imagine, very easily I think, a scenario where jurors are deliberating.

They take their jobs very seriously and they cannot make a determination whether aggravators outweigh mitigators, or vice versa.

Justice Kennedy: Well, that's because the defendant hasn't introduced enough evidence of mitigation and that's the duty of the defendant to come forward with it.

Mr. Woodman: Well, in... in a situation of equipoise, by which I mean a state of indecision on whether the relative balance between aggravating and mitigating circumstances, burden of proof is not the sticking point there.

Justice Kennedy: Well, you say it's a state of indecision.

The jury has decided that aggravating factors have been established.

Mr. Woodman: But that... that's... that's the problem because that's not a reliable determination.

It's no determination that based upon the individual--

Justice Kennedy: Why isn't it a reliable determination that, number one, it's a death qualified accused in... in any event, and there have been specific aggravators proved?

That has been determined.

It's now for the defendant, in effect, to show that the mitigating circumstances outweigh this.

The... and you have the bonus that the State has to prove beyond a reasonable doubt that the mitigators have not outweighed the aggravators.

Mr. Woodman: --But the jury is specifically instructed under this formula that they have a third option, and that is where they can't make a decision, whether aggravators outweigh mitigators, or vice versa--

Justice Kennedy: They have made the decision.

They have made the decision that the aggravators are there and have not been outweighed.

They have made that decision.

Mr. Woodman: --But the jury is required to impose death at that point, and it is a decision that aggravators are not outweighed by mitigators.

But this Court's Eighth Amendment jurisprudence requires--

Justice Kennedy: That's because the mitigation case hasn't been made.

Mr. Woodman: --The Eighth Amendment requires jurors to make a determination, based upon individual characteristics, whether death is an appropriate sentence, whether the defendant deserves death.

And when the jury is in a situation of equipoise and is required to impose death, they're imposing death without having made that determination that death is an appropriate--

Justice Breyer: No, no.

They're... they're saying it is appropriate.

They're saying it is appropriate.

We have the people put in the box.

The box is are they in a situation that is different from the average murderer.

Yes.

And they're making the determination that although they're in that box, that morally they're no different.

Morally they're the same--

Mr. Woodman: --Well, there's no--

Justice Breyer: --because for every factor that makes them morally one way, there's a factor that makes them morally the other way.

So they're different, but they're not morally different.

Now, that's... that's what I think this case presents.

And I... I mean, I imagine a juror who's thinking just what I said.

I don't know if there ever was such a juror, but if there was such a juror, the statute in this instant tells him what to do.

Mr. Woodman: --The statute does tell them what to do.

It tells--

Justice Breyer: It says where you think there is an equivalent, but not a moral difference, death.

Mr. Woodman: --Well, but if... if you think... if you look at the prosecutorial arguments, for example, that have been made in both the Kleypas and Marsh cases, those prosecutorial arguments have urged the jurors to do exactly what I described, and that is to abdicate their decision to make a... a determination based on the... on the individual characteristics on the question of whether death is an appropriate punishment for this individual offender based on the specific circumstances of this crime, and that if they're in equipoise, they have to impose a death sentence.

That is encouraging the jurors to abdicate their decision to determine whether death is an appropriate sentence or not.

Then--

Justice Scalia: Ms.... Ms. Woodman, you know, I... I have not, you know, gone along with... with most of our Walton jurisprudence anyway, but... but what I have really always thought it demanded was really nothing more precise than that a jury has to be given the opportunity to grant mercy.

I... I'm not sure I would describe any of it as any more precise than that.

Mr. Woodman: --Well--

Justice Scalia: The jury has to be given the opportunity to say this poor devil doesn't deserve the death penalty.

However you want to put that, you know, you can put the burdens here, the burdens there.

You can talk about equipoise or not.

Does the jury have a chance to say this... this fellow does not deserve the death penalty?

That--

Mr. Woodman: --Well--

Justice Scalia: --and that clearly exists under this scheme, it seems to me.

Any jury that... that really thinks this person should not go to death can... can do it.

In fact, you know, I guess the statute does not demand that instruction, but that instruction that says... what is it?

The appropriateness of the exercise of mercy can itself be a mitigating factor.

I mean, gee, what... what else... what else do you have to do?

Mr. Woodman: --But that's one factor among many that the jury has to consider.

And the problem here is that the jury could have all of the information that a defendant has proffered as a basis for a sentence less than death, and a jury could still be unable to decide whether aggravation or mitigation is the weightier in a closely balanced case.

And that is the problem here.

Justice Scalia: Any jury that thought this... this person did not deserve death would have ample opportunity to give expression to that determination under this scheme.

Mr. Woodman: Only if they persevere in that decision making, and prosecutors urge them not to by telling them that they must impose death when they cannot decide the balance between aggravating and mitigating circumstances.

Justice Stevens: Ms. Woodman, you said that they didn't make such an argument in this case and in some other case, but you did not include the argument in the joint appendix, did you?

Mr. Woodman: No, I did... we did not include the prosecutorial closing arguments.

They are in--

Justice Ginsburg: Are you... are you... the... the argument--

Mr. Woodman: --They are in the brief.

Justice Ginsburg: --There is a brief from the Kansas law professors, and this is the instruction from the Kleypas case?

Mr. Woodman: Yes.

Justice Ginsburg: If the aggravators are not outweighed by the mitigators, you shall impose the death penalty, not that you may, not that you can, but that you shall impose the death penalty.

This is the duty you were sworn to uphold.

Shows command.

It means must.

That's... is that the type of instruction--

Mr. Woodman: That's correct.

Justice Ginsburg: --the type of argument?

Mr. Woodman: That's correct, and then in Mr. Marsh's case, which is part of the record in this case... and I've cited to the record for that argument, which is at... I apologize.

It's at volume 54 at pages 54 and 55 of the record of the Kansas Supreme Court in the Marsh case.

And in that case, the prosecutorial arguments told the jury that they can't even consider mitigating evidence unless they find that mitigating circumstances outweigh aggravating circumstances because the law has told you and the judge has told you that the law says that if the aggravating circumstances are not outweighed by mitigating circumstances, you shall return a verdict of death.

Justice Scalia: And therefore, they shouldn't consider mitigating at all, he told them?

Mr. Woodman: No.

This is not a question of not being able to consider mitigating circumstances.

And as I said--

Justice Scalia: Is... is this mercy instruction always given?

Is that standard?

Is it... is it, in effect, that... that mercy is... is always one of the mitigating circumstances?

Mr. Woodman: --Yes.

That's part of the jury instructions in capital cases.

Justice Scalia: Gee, I... I really don't see what... what complaint you have then.

Any jury that... that thinks this person deserves mercy says, I think he deserves mercy, and that's... that's a... a mitigating circumstance that outweighs whatever aggravating circumstances there are.

Mr. Woodman: But when you think about the difficulty of the individualized sentencing decision that the jury has to make, the... one juror might feel that way, but it's only if they persevere in that decision making.

This statutory equipoise provision encourages jurors not to persevere in their decision making.

They're... they're sitting around in the jury room.

One juror--

Chief Justice Roberts: What... what is the statutory equipoise provision?

Mr. Woodman: --It says that if the jury finds the existence of at least one aggravating factor and determines further that any aggravating circumstances that exist are not outweighed by any mitigating circumstances found to exist, the sentence shall be death.

Chief Justice Roberts: Well, that's my question.

There is no--

Justice Scalia: If the State is--

Chief Justice Roberts: --There is no statutory equipoise provision.

The State has a burden of proof to prove beyond a reasonable doubt that the mitigating factors don't outweigh the aggravating.

That's what you mean by the statutory equipoise provision?

Mr. Woodman: The statutory equipoise provision, as the Kansas Supreme Court found... they construed this statute.

They construed it to mean that it requires death when jurors are undecided about the balance between aggravating and mitigating circumstances.

That construction of the statute is entitled to respect.

And under--

Justice Scalia: --Who said that?

Excuse me.

That... that description of the statute.

Mr. Woodman: --The Kansas Supreme Court in the Kleypas case in holding it unconstitutional.

Justice Scalia: Yes, but it seems to me the statute doesn't really say that, does it?

But I mean, what the statute says is that if it's in perfect equipoise, the State loses because the State has the burden of proving beyond a reasonable doubt that the... that the mitigators do not outweigh the aggravators.

It seems to me if a jury sees them in perfect equipoise, the jury would have to say the State has not proven beyond a reasonable doubt that the mitigators do not outweigh the aggravators.

Isn't that what a jury would have to say?

Mr. Woodman: No. Under the statute, the State's burden of proof, which is beyond a reasonable doubt... I'll grant that, but it's to prove beyond a reasonable doubt that the aggravators are not outweighed by the mitigators.

Justice Scalia: That's right.

Okay.

And... and if the jury cannot decide whether the aggravators are outweighed by the mitigators, if they're in perfect equipoise, who loses?

Mr. Woodman: The defendant.

Justice Scalia: No.

The State loses.

It's the State that has the burden of proving beyond a reasonable doubt that they are--

Justice Stevens: Well, the Kansas Supreme Court thought that--

Mr. Woodman: The Kansas Supreme Court construed it to mean that a tie goes to the... to the State.

Justice Breyer: That's different from saying not decided.

I thought the Kansas Supreme Court didn't speak of not decided.

I thought it didn't speak in Kleypas about a jury who... a juror who can't make up its... his mind.

I thought it said the jury has made... it assumed the juror has made up his mind.

That's why I think it's artificial.

It says where the jury finds.

It finds equipoise as to the mitigating and aggravating circumstance, then death, that the jury has to find that.

Mr. Woodman: But this is not about structuring decision making.

This is about terminating decision making on the issue that is central to the Eighth Amendment requirements at the selection stage--

Justice Kennedy: Well, it's terminating it because there's not enough mitigating evidence.

Justice Breyer: That's true I... I think, isn't it?

And then the question is, does a State have a right not to do with burden of proof, not to do with anything else, but to have perhaps the artificial situation where the jury finds that the evidence is in equipoise whoever has the burden of proof.

Put it all on you, whoever had it.

That was their final conclusion.

I find it is in equipoise.

Next question, what happens?

Mr. Woodman: --Well, the statute hasn't assigned a burden of proof, but still that's not the problem here.

Justice Breyer: Oh, I agree with you.

That's not the problem.

Mr. Woodman: Because what the individualization requirement means, in this Court's own jurisprudence, is that mere consideration of mitigating circumstances is not enough.

The Court said so in Tennard and in many other cases, Penry v. Johnson, that it's not enough that the sentencer be allowed to consider mitigating circumstances.

It must be allowed to consider and give effect to those mitigating circumstances.

And when a jury cannot decide between aggravating and mitigating circumstances, when that jury is, nevertheless, required under this... that situation to impose a sentence of death, the sentence of death has been imposed without the jury having made the requisite individualized sentencing decision under the Eighth Amendment at the selection stage.

Justice Stevens: --I might point out... I just looked at the question presented.

It does assume... and I guess is drafted by the Kansas Attorney General.

The question is what happens when mitigating and aggravating evidence is in equipoise.

So the assumption on which we took the case is that there will be cases in which there's equipoise.

Mr. Woodman: That's right.

And the Kansas Supreme Court found that that was a real possibility.

And the Kansas Supreme Court found this statute unconstitutional in Kleypas because it violates the individualized sentencing requirement, and the court specifically found that it requires death when jurors are unable to decide the balance between aggravating and mitigating circumstances.

That's how the statute was construed in Kleypas.

I would like to address the jurisdictional issue for a few moments, unless there are any further questions from the Court on the equipoise issue, which I'd be happy to answer.

But one of the things I want to discuss today is the jurisdictional issue on the adequate and independent State law ground, which this Court asked the parties to brief.

I feel that the State misstates the issue there as well because in the Kansas Supreme Court, the State conceded the Federal unconstitutionality of the Kansas equipoise formula, as decided by the court in the Kleypas case 4 years ago, and defended in this case only on the contested State law ground of severability and bypassed raising a Federal question in a motion for a rehearing, which again relied solely on State law severability grounds.

Justice Souter: No, but the... the Attorney General said that the... the fact that in this particular case the issue was focused on, in effect, sort of remedy, severance, and so on, was dependent upon the assumption about what Federal law required.

It was dependent upon the earlier case which so held.

So I don't... and... and what he seem... says seems plausible to me.

I... I don't see how we can divorce the judgment here with the earlier judgment, which Kansas... which the Kansas Supreme Court relied upon here, which was a Federal ground.

Mr. Woodman: Well, it's clear that the Kansas Supreme Court's decision relies on severability as a basis for its decision, and it's true that the Kansas Supreme Court, in doing so, reiterated the Kleypas holding.

Justice Souter: It wouldn't have even raised the issue had it not been for the earlier Federal holding.

Isn't that correct?

Mr. Woodman: That's right, but Mr. Marsh raised the issue on State law severability grounds.

The State conceded that Mr. Marsh was entitled to have his death sentence vacated because of the unconstitutional equipoise provision.

Justice Souter: Well, do you... do you... I... I take it this is the implication of your position.

Do you take this position that in any instance in which a State supreme court decides a case on a Federal... decides an issue on a Federal ground in case A, and for whatever reason, case A is not brought to this Court for review, that in every subsequent case in the State system, which depends upon State A, the State is totally without the... or this Court is... is totally without jurisdiction to review it?

Mr. Woodman: Where the issue has not been pressed by a party in the State court, no, I don't--

Justice Scalia: --Well, how could the issue be pressed?

I mean, it had already been decided by the supreme court.

I mean, what... what could the State say to the trial court?

Mr. Woodman: --Well, we asked the court to overrule the severability decision in Kleypas.

There was absolutely nothing preventing the State from arguing that the constitutional decision in Kleypas should be overruled.

Absolutely nothing preventing that.

Justice Scalia: You think this... you think the State has to challenge as unconstitutional a decision of the State supreme court in... in the lower court, lower State court.

Mr. Woodman: I think that they--

Justice Scalia: How do you expect the lower State court to come out on that?

Mr. Woodman: --Well, but futility is never a reason for not raising an issue.

Criminal defendants are required to raise issues all the time in order to preserve them for later review.

In Engle v. Isaacs, this... this Court said futility is no excuse.

And what is good for criminal defendants, very respectfully, is good for the State.

And Justice Rehnquist said as much for the Court in the Court's decision in Illinois v. Gates, that... that States are not exempt from the ordinary rules of procedure which govern this Court's jurisdiction.

And the fact of the matter is that the State not only did not raise the Federal issue in the Kansas Supreme Court below, which it could have, but it conceded the Federal unconstitutionality of the statute.

Justice Scalia: That's a little different from an adequate and independent State ground argument.

You're... you're now making a... a waiver argument.

Mr. Woodman: Well, there's a... there's a relationship between the adequate and independent State law cases and the not pressed or passed upon cases because, for example, in Michigan v. Long, this Court has said where an issue is pressed... a Federal issue is pressed in the State courts, then this Court on review will resolve any ambiguity in the Court's opinion in favor of a presumption that the issue was passed upon by the State court.

But conversely, in Coleman v. Thompson, this Court held that where an issue is not pressed in the State courts, then the presumption will be the opposite.

The presumption will be that the State court has not passed upon--

Justice Scalia: We... we don't need a presumption here.

I mean, the... the only basis for inquiring into severability is the presumed unconstitutionality of the statute.

I mean, that's the only basis why severability comes up.

We don't have to presume anything.

Mr. Woodman: --But the Kansas Supreme Court didn't redecide that issue in the Marsh case.

Justice Scalia: It doesn't matter whether it redecided it.

It... it was the postulate of... of its... necessary postulate of... of its decision in this case, it seems to me.

Mr. Woodman: There... well, under Article III and under section 1257(a), there has to be a case or controversy for this Court to review.

There was no live case or controversy in the Kansas Supreme Court on the Federal question of whether the equipoise provision in the Kansas statute was constitutional.

It was conceded that it was unconstitutional and the parties agreed on that.

It was treated as settled.

And all the Kansas Supreme Court did, before overruling the Kleypas severability decision, which is a matter of State law, was to reiterate that holding, and mere reiteration, as this Court knows from the Morrison v. Watson case, approved in Illinois v. Gates, that is not the decision of a Federal question.

Justice Souter: If you're... if you're right, I take it, we would not have jurisdiction to review a Federal ground that was raised by a State court, even though it had not been raised by the parties.

If they get... you know, they get the opinion from the court and there's a big surprise... the... the State court decided to go off on... on a Federal ground, which had not been pressed... I take it on your view we would not have jurisdiction to review that.

Mr. Woodman: I don't believe the Court would, and I think that's what the Court's original jurisdictional rules were intended to be.

Now, I do understand that the Court has taken jurisdiction over such issues, and it's usually--

Chief Justice Roberts: Well, that's because the... the formula is that the issue has to either have been raised or decided.

Mr. Woodman: --Well, the only issue that I could find that says that... that really enforces that rule is the Cohen v. Cowles Media case.

And if you look at the provenance of that decision, that's the only case where the Court actually considered a question for the first time in... in this Court.

And what happened in that case is that the Federal issue that was presented to this Court was actually discussed at oral argument.

It wasn't raised by either of the parties in their briefs in the State court, but it was discussed at oral argument.

And the Court decided a First Amendment issue on the basis of that discussion at oral argument.

And so this Court took jurisdiction and stated that as long as it's been passed upon, it's not necessary that it was pressed upon.

And the decision, which the Court relied on in that case, if I'm remembering it correctly, was a decision involving a Federal question which was raised too late to comply with the procedural requirements in State court.

And so it's really not the case that this Court routinely takes cases where the issue was not pressed by the parties in the State courts.

And that's the situation we have in this case.

Chief Justice Roberts: But I don't... I don't... excuse me.

I don't understand how that makes any sense.

If you had an... a... a case that's litigated entirely on State law grounds and in the State supreme court opinion, they announce we are sua sponte deciding this on the basis of the Federal Constitution and you, State, lose, your argument is that the State is just out of luck.

They can't seek review of that decision?

Mr. Woodman: I think where the issue is decided sua sponte and affects the parties in that case, then maybe.

But that didn't happen here.

What happened here was that the court merely reiterated a holding from 4 years ago, and the State law severability decision, which was the issue in contest in this case and the issue that was decided in this case, was a matter of State law, and it was sufficient to support the judgment of the Kansas Supreme Court.

And really, what... what the State is trying to do here is to... I mean, these issues were decided in the Kleypas case, and if we were here on the Kleypas case, there wouldn't be any argument as to whether the Kansas Supreme Court's decision rested on an adequate and independent State law ground because the Federal issue was clearly decided and it was interwoven with the State law determination.

But that's not the case here.

Justice Scalia: Kleypas didn't hold that the whole statute was bad.

Kleypas gave a savings construction of the statute, as I recall.

Mr. Woodman: Yes, they did.

But the State is misconstruing their decision by saying they didn't decide the constitutional question in Kleypas.

It was merely construction of the statute to avoid the constitutional issue and therefore--

Justice Kennedy: Well, but in the case before us, the court... the Kansas court said... I think it's 24 or 25 of the... of the headnote... we are reconsidering the issue.

Mr. Woodman: --The... that language in the court's opinion was, after full reconsideration, we're declining to revisit the issue at the dissenter's invitation.

We're declining that invitation to revisit the issue.

And there's no question that the court discussed it and thought about it, and the dissenters were clearly inviting them--

Justice Kennedy: And made a reasoned judgment about it.

Mr. Woodman: --But they didn't reopen the issue.

They said there's nothing new here.

We don't need to reopen this decision, and--

Justice Kennedy: Well, they reopened it to the extent as Justice Scalia has indicated, but they now take a different view of the validity of the State statute.

Mr. Woodman: --They're taking a--

Justice Kennedy: That's... that's a decision following a reason, and the reason is a Federal reason.

Mr. Woodman: --Well, no, because the... what they were saying was that the appropriate remedy in Kleypas was to return the subject to the legislature because the statute was ambiguous and the court had no authority, under separation of powers grounds and under State law statutory interpretation grounds, to construe this statute to mean the opposite of what it said.

And that's the decision that they overruled in this case, and that's a State law decision.

Justice Scalia: So... so the State can get mouse trapped in this way.

In... in the first case, it doesn't take the case up because not too much has been lost, and then in the second case, the court says, oh, by the way, everything has been lost.

And you say that we can't review that because... because the... the State didn't... didn't challenge Kleypas at the time.

Mr. Woodman: Or challenge that decision in this case.

Justice Scalia: Well, but that decision in this... they had no reason to challenge it until the State decided to... to change it.

Mr. Woodman: But if they wanted to raise the issue, they could have raised it in either case, and we wouldn't have this problem here.

But they didn't raise it, and that presents a jurisdictional problem for this Court.

What they're trying to do in this case is yoke a live horse to a dead one to form a plowing team, and it doesn't work.

Justice Scalia: I like that.

[Laughter]

Mr. Woodman: I looked... as a matter of fact, I looked at our Kansas State seal because it has a plowing... a horse drawn plow on it, and I looked at it again this morning before I came in here because I couldn't remember whether it was one horse or two, and it's two horses.

And I was thinking about how the meaning of that State seal would be fundamentally altered if one of those horses was dead.

[Laughter]

Thank you.

Rebuttal of Phill Kline

Chief Justice Roberts: Thank you, Ms. Woodman.

General Kline, you have 4 minutes remaining.

Mr. Kline: Thank you, Mr. Chief Justice, and may it please the Court--

The State is here on a final court decision wrongfully... the State supreme court wrongfully interpreting this Court's Eighth Amendment jurisprudence.

And just as Justice Souter and the Chief Justice's hypotheticals, as it relates to this case, were articulated, it is actually true that in this case the State was not aware that this issue would be raised again and only conceded... and waiver is truly not an issue because a lower court did not rely upon it.

And we have some confusion between the terms here.

It only conceded that Kleypas, a decision by the Kansas Supreme Court, was the law of the case in another case subsequently reaching the Kansas Supreme Court.

And the Kansas Supreme Court, on its own motion, engaged in a full reconsideration and the respondent in their brief argues that the primary reliance of the court was not on Eighth Amendment jurisprudence but other grounds.

There is no requirement for jurisdiction under 28-1257 that the primary reliance be on a Federal issue.

There is a requirement to deny jurisdiction that there be an independent and adequate State ground on which the decision would rest regardless of the outcome of the Federal issue.

Clearly that's not the case here.

Justice Stevens: Wouldn't they have come out the same way if they never mentioned the Federal issue?

Mr. Kline: This case come out... no, it would not because the Kleypas court found that the Kansas... or the Kansas death penalty was constitutional as construed.

And the Kansas court in this case found it unconstitutional on its face.

And there is a significant difference, and the court raised the issue again.

I would like to point out to the Court that there are five ways that a juror can, after their reasoned moral decision, give effect to the belief that the mitigating evidence does not warrant the death penalty.

The juror can state that they have a reasonable doubt as to whether the State has met its burden of proving that the mitigating factors do not outweigh the aggravating factors.

The juror can simply delay.

Kansas law has a default for life in its sentence or in its structure, and I would encourage you to read on page 28 of your appendix instruction number 12 in which the jury is told that if, after a reasonable time, you are unable to make a decision... in other words, in a doubtful case... the judge is required by law to dismiss the jury and sentence the defendant to life.

And so there is a default for life, and that is another way that a juror can give effect to their reasoned moral decision that death is not appropriate.

The juror can give effect to their reasoned moral decision that is not appropriate by determining that the mitigating factors outweigh the aggravating factors.

And the juror under instruction number 5--

Justice Stevens: But it cannot do that by determining that they're in equipoise.

Mr. Kline: --That is correct, Justice Stevens.

Justice Stevens: Which is the very issue your... your petition presents us with.

Mr. Kline: It is, but the juror does know what the effect of that decision is and, therefore, is able to engage in a reasoned moral choice.

What truly happens... and... and Justice Breyer alluded to it, I believe, as it relates to this hypothetical about weighing molecules... is that a juror essentially steps back and decides what is the appropriate sentence--

Justice Breyer: No, no.

Do it.

Make the reasoned moral choice.

And the facts are that we have, because of the balancing, molecules or not... we have by the balancing made a determination that anything for the bad that distinguishes this person from the ordinary is... is equally balanced by the good.

Now, make the moral choice.

Mr. Kline: --I think the moral--

Justice Breyer: What is the reason?

Mr. Kline: --I think the moral decision, Justice Breyer, is determined in all the variables of the introduction of the evidence, and as this Court has required under the Eighth Amendment, that it allow the jury to consider and give effect to all mitigating evidence relevant.

And that's in Kansas law.

I would state this in closing, and that is that the Kansas legislature reenacted the death penalty for the first time since this Court struck it down in Furman in the spring of 1994.

And in doing so, it gave great deference to this Court's role as final arbiter of the meaning of the Constitution.

And if you read the instructions and the law that is provided to you in this case, you will see this Court's words mirrored back to you in the scheme of the Kansas law as it relates to the death penalty.

Thank you.

Chief Justice Roberts: Thank you, General Kline.

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Kansas v. Marsh - Oral Reargument

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Kansas v. Marsh

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

1 KANSAS, Petitioner, v. MICHAEL LEE MARSH, II.

No. 04-1170

April 25, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES: PHILL KLINE, ESQ., Attorney General, Topeka, Kansas; on behalf of the Petitioner.

REBECCA E. WOODMAN, ESQ., Topeka, Kansas; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE ROBERTS: We'll hear argument next in 04-1170, Kansas versus Marsh.

General Kline.

ORAL ARGUMENT OF PHILL KLINE

ON BEHALF OF PETITIONER

MR. KLINE: Mr. Chief Justice, and may it please the Court:

This Court has never held that a specific method of weighing aggravating and mitigating evidence is required, yet in its individualized sentencing line of cases this Court has consistently said that all the eighth amendment requires is that a juror consider and give effect to all relevant mitigating evidence. In pages 23 through 28 of your appendix, you will find that Kansas jury instructions and Kansas law clearly, on four occasions, instruct individual jurors that they must individually consider all mitigating evidence that they find. Furthermore, the jurors are instructed in five different methods in which they can give that mitigating evidence the effect of a life sentence, and only one manner in which, acting unanimously and after the State has met the highest burden allowed by law in three separate measurements, beyond a reasonable doubt demonstrated that the death sentence is appropriate.

Specifically, instruction number 4, paragraph 2 on page 24 of the joint appendix, will show the jurors are instructed that mercy, in and of itself, is a mitigating piece of evidence, and later, in the instruction that lays out the mitigating evidence presented in this specific case, they are told, in paragraph 18 on page 26 of your joint appendix, that mercy, by itself, can be sufficient to warrant a sentence other than death.

JUSTICE SCALIA: I -- I'm sorry, what instruction is that?

MR. KLINE: Justice Scalia, you will find it -- first of all, mercy is referred to in paragraph -- in instruction number 4 --

JUSTICE SCALIA: I got --

MR. KLINE: -- paragraph 2 -- okay.

JUSTICE SCALIA: -- that one. It's the other one. It was instruction number --

MR. KLINE: The instruction, again, is number 4 in paragraph 18 on page --

JUSTICE SCALIA: I gotcha.

MR. KLINE: -- 26.

JUSTICE SCALIA: All the way at the end of 4, okay.

MR. KLINE: You will see the instruction for mercy again.

JUSTICE KENNEDY: Well, you began by saying that there's three different measures, I think -- I think was the word you used. And the State, I take it, must prove, beyond a reasonable doubt, (a) that it was an aggravated -- or, (a) that it was an aggravated murder, (b) that there was another crime involved --

MR. KLINE: Justice --

JUSTICE KENNEDY: -- sort of --

MR. KLINE: -- Kennedy --

JUSTICE KENNEDY: -- if you could just walk me through that.

MR. KLINE: Certainly. First of all, the State has to prove, beyond a reasonable doubt, with jury unanimity, that the defendant is guilty of capital murder. And Kansas has one of the most narrow death- penalty statutes in the Nation. And then, past that time, we then engage in a sentencing --

JUSTICE KENNEDY: And --

MR. KLINE: -- phase 5.

JUSTICE KENNEDY: -- capital murder includes, in this case --

MR. KLINE: Capital murder includes, in this case, that the homicide involved more than one person in a single act.

JUSTICE KENNEDY: Involved more than one person. Then, second?

MR. KLINE: Then we go to the sentencing phase, in which the State has to prove one of eight statutorily defined aggravating factors beyond a reasonable doubt with jury unanimity. There were three specific aggravating factors that were found by the jury in this instance. And then, the defendant introduces all mitigating evidence, and the standard of introduction is relevancy. But, unlike the Walton case, which has a functionally identical provision that is at issue here, the State maintains the burden, while, in Walton, the burden was provided to the defendant to demonstrate that the mitigating factors were so substantial to call for leniency.

JUSTICE KENNEDY: You had to prove, beyond a reasonable doubt, the mitigating factors do not outweigh the aggravating factors that have already been established.

MR. KLINE: That is correct. And that is found in instruction number 10. And as we go through this process, you see that the Kansas death-penalty law has a default to life in virtually every stage of the prosecution of the case. And then, instruction number 10 is a determination by the legislature consistent with this Court's precedent, because we have narrowed the class of defendants who are eligible for death, consistent with Furman and the concern for guided discretion. And then, we have allowed the introduction and consideration of all mitigating evidence. The juror is then told how to give the effect that they desire, after the reasoned moral decision, to that mitigating evidence. As defense counsel for Mr. Marsh, in the transcript of the sentencing phase, on page 66, volume 4 -- it is not in your joint appendix, but it is part of the record before the Court -- stated to the jury in closing, "The practical fact is that each of you will decide whether or not you believe death is the appropriate sentence. And if you decide that death is not the appropriate sentence, you have decided that the mitigators outweigh the aggravators."

What instruction number 10, which is before you today, which states that the State must prove beyond a reasonable doubt that the mitigators do not outweigh the aggravating factors, is, is guidance to the jury on how they can give the --

JUSTICE STEVENS: May I just ask --

MR. KLINE: -- effect --

JUSTICE STEVENS: -- this question and kind of cut through -- is it a correct interpretation of the instructions, as a whole, to say, in effect, "If you find the aggravating and mitigating circumstances are equally balanced, you shall impose the death sentence"?

MR. KLINE: If a juror finds -- that is correct, Justice Stevens -- if the juror's decided conclusion and reasoned moral judgment is that the mitigating factors and the aggravating factors are in balance, and finds that beyond a reasonable doubt, instruction number 10 clearly indicates that death is the appropriate sentence. So, it --

JUSTICE SOUTER: The difficulty I have is in the phrase that you have mentioned in the course of your argument a couple of times referring to the "reasoned moral response." And the difficulty I have in squaring "reasoned moral response" with the construction that the Kansas Court and we all agree is the proper construction of the -- of the -- of the equipoise kind of provision, is this. Kansas has a right, as I understand it, to define what it regards as the aggravating circumstances, those that support a death verdict. And Kansas has done so. Kansas is also saying that if a jury cannot find that the aggravators, as we've defined them, outweigh the mitigators -- i.e., if the jury is in equipoise -- the result must be death, anyway. And that does not seem to be a reasoned moral response. I'm assuming that a reasoned moral response would be: the death penalty should be imposed because the aggravators do outweigh -- i.e., it's not equipoise -- the aggravators are heavier. And because Kansas is saying, "Even though they're not, death is the result, anyway," it doesn't seem like a reasoned moral response. What is your answer to that?

MR. KLINE: Justice Souter, of course the State believes that it is. It is, first of all, consistent with this Court's precedent as what is required --

JUSTICE SOUTER: Well, that's the issue.

MR. KLINE: And in the -- in the Walton case, this Court found that a functionally identical provision in Arizona, even though the burden remained on the defendant, was appropriate after the State had met the requirements of guided discretion, as well as the individualized sentencing requirement, in setting about a -- proving that, "This defendant is more deserving of death than anybody else convicted of the same crime."

JUSTICE SOUTER: But here we have, it seems to me, to be a stark finding that it has not been proven. That is what "equipoise" means. If aggravators are the basis for a death sentence, the equipoise finding is, "Aggravators don't predominate. We cannot make that conclusion. We're right on the fence." And it seems to me that to call that a reasoned moral response -- "We're on the fence, but execute anyway" -- seems a total inconsistency.

MR. KLINE: The State maintains, Justice Souter, that the decision that the mitigating factors do not outweigh the aggravating factors is a decision, and it is a --

JUSTICE SOUTER: But it's a decision that says, "We don't know what should be done." If aggravators define the basis for execution, and mitigators define the basis for life, the equipoise verdict says, in so many words, "We don't know which is more important." And Kansas says, when the jury comes back and says, "We don't know," that the result should be death. And that is what seems to me inconsistent with the notion of a reasoned moral response.

MR. KLINE: The distinction, Justice Souter, that I believe, from your analogy, is that the Kansas Legislature has said they do know, and that death is appropriate once a defendant has been found guilty of capital murder, in a very narrow definition. And then, once the --

JUSTICE SCALIA: It seems to me it sounds different if you put it differently. Surely, it's a reasoned moral response to say, "We have found these horrible aggravating factors in this murder. It's not even your usual murder. There are these terrible aggravating factors. Three of them, we found. And we further find that there is no mitigating evidence to outweigh those aggravating factors." That seems to me a perfectly valid moral response.

MR. KLINE: That is correct, Justice Scalia.

JUSTICE SOUTER: But that is not our case, is it? Because our case is not, "We don't find that the mitigators outweigh." Our case is, "We find the mitigators are of equal weight." That's why you get to equipoise. It's not a question of the failure of mitigators to predominate.

JUSTICE SCALIA: No.

JUSTICE SOUTER: It is the sufficiency of mitigators to equal in weight. And that's what poses the problem, it seems to me.

JUSTICE SCALIA: But it seems to me that to be equal in weight is not to predominate. And that's all the jury is saying --

MR. KLINE: I would agree, Justice Scalia --

JUSTICE SCALIA: -- if there's nothing to outweigh the aggravating factors.

JUSTICE SOUTER: Of course it is not to predominate, but it is something more precise than merely not predominating. It is a fact, in effect, that you don't know, if all you know is that they don't predominate. The fact that you know, here, is that they equal, and --

CHIEF JUSTICE ROBERTS: Do we know that as a fact?

MR. KLINE: Justice Roberts, I believe that there are a couple of things which might help illuminate a little bit more what the jury faces in this instance. First of all, the statement --

CHIEF JUSTICE ROBERTS: Do we have a return of a verdict saying, "We find these factors in equipoise"?

MR. KLINE: There is a verdict form that requires the jury, with unanimity, if the sentence is death, to indicate that the State has met the burden beyond a reasonable doubt of demonstrating --

CHIEF JUSTICE ROBERTS: So, what we have is a situation where this is a theoretical possibility under the statute.

MR. KLINE: Correct.

CHIEF JUSTICE ROBERTS: Not a situation where this is what the jury has said.

MR. KLINE: The jury does not find in that fashion.

JUSTICE SOUTER: That's right. We don't -- we don't know whether that was the case here or not.

MR. KLINE: How --

JUSTICE SOUTER: As I understand it, our question is, If a jury could return the death verdict in the equipoise situation, as the Kansas Supreme Court has defined it, is that -- is that statute allowing for that possibility constitutional? Isn't that --

MR. KLINE: That is the issue, just --

JUSTICE SOUTER: Yes.

MR. KLINE: -- as it was in Walton, which had --

JUSTICE SOUTER: Yes.

MR. KLINE: -- a functionally identical provision that required that the defendant demonstrate that there were mitigating factors substantial enough to call for leniency, which --

CHIEF JUSTICE ROBERTS: We're not talking, just -- we're not talking about a numerical equipoise. I -- there's three aggravators and three mitigators, in equipoise. And the -- presumably, the individual jurors can give what weight they think is appropriate to the mitigating factors. They can find all three aggravators met, and say, "Well, I still think, under factor 18, that mercy ought to outweigh death."

MR. KLINE: That is correct, Justice Roberts. And, in fact, they are informed that it is not a numerical equation.

JUSTICE GINSBURG: But is it -- is it like in a -- in a -- take a civil case where the judge gives the standard charge about, "Imagine two plates and a scale, and if they are in equipoise, then you find against the party who has the burden of proof" -- if we make that comparison, then it's pretty clear that the burden of proof is on the defendant if the answer is -- to the equipoise question is, "Then you must come in with a death verdict."

MR. KLINE: Justice Ginsburg, unlike in Arizona, there is a specific instruction to the jury that they must decide beyond a reasonable doubt that the mitigating factors do not outweigh the aggravating factors before the death sentence is imposed. And it is analogous to instructing the jury on how to give the effect they desire to the mitigating and aggravating factors that have been presented. I would possibly agree that we would have a constitutional issue if it was similar to instructing a jury, "You either mark blue or red on the jury verdict form, and we will not tell you the effect of that decision." However, this instruction clearly lets them know that a decision beyond a reasonable doubt that the State has met its burden, that the mitigators do not outweigh the aggravating factors, that the effect is death. And --

JUSTICE ALITO: Is there a difference in the moral burden on the jurors, or the psychological burden on the jurors, in the situation where they have to find that the aggravators outweigh the mitigators, and, therefore, make an affirmative finding that leads to the sentence of death, as opposed to the situation where they can say, "We can't decide, under the applicable burden of proof, which side is weightier," and, therefore, they allow a default rule to dictate what the sentence is going to be?

MR. KLINE: Justice Alito, I do not believe that that is what occurs, because, indecision, under Kansas law, is clearly indicative of a life sentence. In fact, if the jury does not, with unanimity, come together and make an affirmative decision, and indicate such on the verdict form within a reasonable time, they are told and instructed, "the judge shall dismiss the jury." And the State's --

JUSTICE ALITO: No, but if they find -- if they agree, beyond a reasonable doubt, that the aggravators and the mitigators are in equipoise, then they allow the default rule to dictate the sentence of death. Isn't that right?

MR. KLINE: That is correct, at some point. I wouldn't term it a "default rule" in every statutory scheme involving the death penalty. There is a point in time when the jury is informed that the result of their deliberations is a death sentence. So, you can call something a default rule in virtually any State. And, in fact, relying on the Walton decision, many States have functionally identical statutes to Kansas, and courts have interpreted the Walton decision as resolving this issue. In Adamson v. Lewis, the Ninth Circuit said that the issue of the potential, the hypothetical, of equipoise was resolved in Walton. Furthermore, the Idaho -- the Seventh Circuit, relating to the Idaho scheme relating to the death penalty, found that this Court resolved the issue in Walton, as did the Illinois Court. So, there have been several findings based on Walton. And, in fact, the Kansas Legislature enacted this death penalty statute soon after Walton --

JUSTICE STEVENS: General Kline, can I ask you this question? Supposing the law was that you're supposed to be instructed that, "Unless the mitigating factors substantially outweigh the aggravating factors, the sentence shall be death." Would that be permissible?

MR. KLINE: Justice Stevens, as you're aware, that's the Blackmun dissent in Walton, in the hypothetical that he posed with his concern about Walton. I believe that there could come a point in time, based on the instruction, that the jury was not able to give full effect to the mitigating evidence that they desired.

JUSTICE STEVENS: Well, what about my hypothetical?

MR. KLINE: That's -- that there -- it would approach a time, possibly, where --

JUSTICE STEVENS: Would it --

MR. KLINE: -- this Court would find --

JUSTICE STEVENS: Would it be constitutional or unconstitutional?

MR. KLINE: This Court, under --

JUSTICE STEVENS: In your view.

MR. KLINE: On my view? It would approach a problem with this Court's --

JUSTICE STEVENS: I know it approaches the problem. I'm wondering if it gets there.

[Laughter.]

MR. KLINE: I'd defer to the wisdom of this Court.

[Laughter.]

JUSTICE BREYER: Leaving law out, which I'd like to do, just for the sake of argument, imagine you're a juror, and this is a totally contrived situation, which I think we're deciding -- I don't know if there's ever been such a situation -- but you're a juror, and you're told the following by a fellow juror, "The reason that we have these aggravating circumstances, which are hard to understand here, is, we want to be sure this fellow is, morally speaking, somewhat more deserving of death, in the average."

And then he says, "And the reason that we have these mitigating circumstances here is because everyone of them means that he's somewhat less moral -- he's not as morally undeserving, cuts the other way, it reduces -- it makes him less deserving of death, morally speaking."

Now, you're the juror, how do you feel about this?"

And you say, "They're absolutely in balance, absolutely in balance. For every fact here on the aggravating side that puts me thinking, morally speaking, he's more deserving of death, there is a mitigating factor which makes me think, morally speaking, he's less deserving of death. So, I'm in perfect balance."

And your fellow juror says, "Now, will you please give me, then, one moral reason why he should be executed?"

And what's your answer?

MR. KLINE: My answer would be that the law clearly provides that if that is the finding --

JUSTICE BREYER: No, but if the law says, "You have to be able to give, morally speaking, reason -- you have to reason your way towards the moral conclusion that he's deserving of death" -- that's why I tried to take the law out of it. I don't want you to be a lawyer. I want you to be a juror. And I want you to give a moral reason --

MR. KLINE: The moral reason would be --

JUSTICE BREYER: -- why, when this is in equipoise, he is more deserving of death than the average.

MR. KLINE: Justice Breyer, I would say that the moral reason is, "I know the effect of that deliberation, and I know that, if I make that finding, that the death sentence will be warranted."

JUSTICE SCALIA: Well, and of course --

JUSTICE BREYER: Well --

JUSTICE SCALIA: -- the jury doesn't have a free-falling moral judgment to make. It accepts the judgment of the majority of the people in Kansas that certain aggravators, and only those aggravators, shall be counted against the defendant --

MR. KLINE: And --

JUSTICE SCALIA: -- and that all of them shall be -- even if the juror himself does not believe, morally, that this particular aggravator ought to be there. So, it's not as though our law says that somehow the jury has to -- each juror has to be able to make, like Solomon, his own moral judgment on this fellow. And one of the things that the -- that the Kansas law prescribes is that when they're in equipoise, the people of Kansas think that the aggravators that they have specified are serious enough that unless there is something to overcome them, the death penalty is appropriate. That seems to me a moral judgment within the limited range of moral judgment that the jury is accorded.

MR. KLINE: That is correct, Justice Scalia. And the concern about unfettered moral judgment of a jury calls into question the original purpose for Furman. And so, there is guided discretion --

CHIEF JUSTICE ROBERTS: Of course, they have unfettered discretion with respect to the mitigating factors, don't they? Under --

MR. KLINE: That is correct.

CHIEF JUSTICE ROBERTS: -- under factor 18, any other circumstance which they find serves as a basis for a sentence other than death.

MR. KLINE: That is correct, Justice --

JUSTICE KENNEDY: And I take it --

MR. KLINE: -- Mr. Chief Justice.

JUSTICE KENNEDY: -- the moral answer is also, "He stands before us with the scales already tipped. He stands before us having been shown, beyond a reasonable doubt, to have committed aggravated murder. He has the obligation to show us why he should be excused from that penalty. He has not done so. We can take anything that he came -- brought to our attention, and we can say that this outweighs." It does not.

MR. KLINE: And, Justice Kennedy, that is the decision in the holding in Walton. And --

JUSTICE SOUTER: Is that the law in Kansas? I mean, I thought -- correct me if I'm wrong, because I may have made a wrong assumption here -- I thought the finding of guilt to an aggravated murder is the preface to a determination as to whether aggravators or mitigators predominate. And, based upon that determination, there will be a decision as to whether the sentence should be death or life.

MR. KLINE: The first determination that a jury engages in is whether the defendant has been proven, beyond a reasonable doubt, guilty of capital murder --

JUSTICE SOUTER: Right.

MR. KLINE: -- which is defined in a very narrow statute. Kansas --

JUSTICE SOUTER: And, at that point, we don't have any way of knowing, I take it, whether the penalty should be life or death.

MR. KLINE: Then we have -- you're correct.

JUSTICE SOUTER: Okay.

MR. KLINE: And then we have a separate sentencing phase in which the State first bears the burden of demonstrating one -- eight -- of eight aggravating factors is present. And that burden is beyond a reasonable doubt --

JUSTICE SOUTER: Okay. But --

MR. KLINE: -- with jury unanimity.

JUSTICE SOUTER: But --

MR. KLINE: And --

JUSTICE SOUTER: -- what I'm -- what I'm -- what I'm getting at is, I don't -- I -- as I understand the Kansas scheme, the determination of guilt, to aggravated murder, does not create a presumption in favor of the death penalty.

MR. KLINE: No, the --

JUSTICE SOUTER: Okay.

MR. KLINE: -- that is correct. That is correct. There are several --

JUSTICE SCALIA: It depends on what you mean by "presumption." It certainly -- it certainly says that unless you find something that outweighs this, the death penalty is the proper penalty.

MR. KLINE: Justice Scalia --

JUSTICE SCALIA: The burden is on the jury to find something to outweigh it. And, in the absence of a finding of something that outweighs it, when these aggravators are found, the death penalty is the proper penalty.

MR. KLINE: Justice Scalia, that is correct. Once the State has met the burden of proving that one of the eight statutory aggravators is present --

JUSTICE SOUTER: Right. But the fact of -- let me -- I think we've got a terminological problem -- the fact that there has been a finding of guilt of aggravated murder is not tantamount, as I understand it, to a finding that aggravating factors to be considered at the penalty phase have also been found. Is that --

MR. KLINE: That is --

JUSTICE SOUTER: -- correct?

MR. KLINE: -- correct.

JUSTICE SOUTER: Okay.

MR. KLINE: There is a separate burden there --

JUSTICE SOUTER: Okay.

MR. KLINE: -- Justice Souter. And as it relates to the "give effect" language, the cases that this Court has considered regarding that are dramatically different. In those cases, such as the Penry cases and other cases, the concern was, the jury was affirmatively instructed that they could not use evidence that was introduced and relevant in a manner which would lead to mitigation, such as the defendant's youthfulness. And the special instruction in Texas said that they could only utilize that evidence to determine whether there was a likelihood of re-offense. And this Court reasoned that it is possible to look at youthfulness as mitigating factor which diminishes the moral culpability of the defendant. There is no claim in this case that the jurors were unable to take the mitigating evidence and give it whatever effect they desired in mitigation. In fact, they are instructed that they must individually consider all such evidence. And then they are instructed to make their decision based upon what effect that they would give it.

JUSTICE SCALIA: Can --

MR. KLINE: So --

JUSTICE SCALIA: Can I ask you a question that goes to your response to Justice Souter's last question? As I understand the scheme -- maybe my understanding is wrong -- once they have found the existence of those aggravating factors that justify the death penalty, and then you move into the penalty phase for them to decide whether, in fact, the death penalty would be imposed, it's not up to them to -- they can't eliminate one of those aggravating factors that has been found. They have to take into account all of the aggravating factors that have been found. Isn't that right?

MR. KLINE: That's correct, Justice Scalia. I think the confusion is the use of the term "aggravated murder," which would be not quite correct under Kansas law. There is a statutory requirement of a finding of guilt of capital murder, and that is in very narrow circumstances. Kansas has one of the most narrow death penalties in the Nation. Then once that guilt is determined, we then move to the phase where the State must prove an aggravating factor in addition to having proved that the defendant is guilty of capital murder.

JUSTICE SCALIA: Right.

MR. KLINE: Once that is achieved, then the jurors are instructed to give way to a consideration to all aggravating factors that they find, with unanimity, to exist, and to consider all mitigating evidence which they find, individually, to exist, with the only burden on the defendant being relevancy for introduction. And then, they are instructed to consider whether the State has proven, beyond a reasonable doubt, that the mitigating factors do not outweigh the aggravating factors.

And, Mr. Chief Justice, if it may please the Court, I'd like to reserve the remainder of my time.

CHIEF JUSTICE ROBERTS: Thank you, General Kline.

Ms. Woodman.

ORAL ARGUMENT OF REBECCA E. WOODMAN

ON BEHALF OF RESPONDENT

MS. WOODMAN: Mr. Chief Justice, and may it please the Court:

Since the argument of the attorney general was addressed exclusively to the question of the constitutionality of the Kansas statute, I will devote all of my argument to that subject, as well, although I am sure that the Court, in deliberations, will be considering the several jurisdictional issues which were briefed and argued earlier in the term. And if there are no questions on those jurisdictional issues, I will proceed to the merits.

To pick up on some of the things that were said during Attorney General Kline's argument, the eighth amendment requires reliability in the determination that death is an appropriate sentence. And at the selection stage, the question is whether the jury has made a reliable, collective, responsible decision based upon the unique circumstances of the individual defendant that death is an appropriate sentence and that this defendant is particularly culpable in a way that distinguishes him from the mass of death-eligible defendants. And the problem with the equipoise provision here, which the State agrees can occur under the Kansas statute, is that we don't know from a death verdict pronounced by a jury in Kansas whether the jury did decree death by equipoise or not. Death sentences must be rationally reviewable. And when we look at the -- at a death sentence that's been pronounced in Kansas, we can't determine whether the jury decreed death by equipoise.

JUSTICE KENNEDY: We are confident that the jury found aggravating factors. We know that.

MS. WOODMAN: Yes.

JUSTICE KENNEDY: And we know --

MS. WOODMAN: Yes, and I agree --

JUSTICE KENNEDY: -- that they found them beyond a reasonable doubt.

MS. WOODMAN: Yes. The jury did find an aggravating factor beyond --

JUSTICE KENNEDY: And we know --

MS. WOODMAN: -- a reasonable --

JUSTICE KENNEDY: -- we --

MS. WOODMAN: -- doubt.

JUSTICE KENNEDY: -- and we know that they found that the defendant had not shown that mitigating factors outweighed those aggravating factors.

MS. WOODMAN: That's right. But the Kansas Supreme Court, in the Kleypas case, examined the Kansas statute -- which, by the way, is unique to Kansas; no other State in the country has a statute like this, and this will affect no State outside of Kansas -- they examined this statute in great detail, and they --

JUSTICE SCALIA: You disagree from your -- with your friend on the other side on that point.

MS. WOODMAN: Whether it's unique?

JUSTICE SCALIA: How can we check on that? No, he said that a number of other State statutes would be affected by our coming out the way you would like us, on this.

MS. WOODMAN: I don't see how, because --

JUSTICE SCALIA: Because he said --

MS. WOODMAN: -- Kansas --

JUSTICE SCALIA: -- he said it would change Walton, and that would impair those other State statutes.

MS. WOODMAN: As we argue in our brief, Walton simply did not speak to this --

JUSTICE SCALIA: Yes.

MS. WOODMAN: -- issue. And, in fact, the Arizona Supreme Court, in Walton, interpreted the Arizona statute to require that aggravators outweigh mitigators.

JUSTICE SCALIA: Okay. I didn't mean to interrupt your argument, but presumably the attorney general will tell us, in his rebuttal.

MS. WOODMAN: Sure. And the Montana statute, which reads precisely the way Arizona's is, they've decided the equipoise issue and said that the language of that statute does not mandate death by equipoise. So, those statutes are distinguishable, and there's simply no other State that has a statute which mandates death by equipoise.

In any event, the Kansas Supreme Court did interpret the statute to contain a mandatory death-by- equipoise provision, which the State's question presented assumes is the case. And the court, familiar with the way the statute has operated, and is likely to operate it in Kansas, found that equipoise can happen, and that it risks unreliability in capital sentencing in a way that's forbidden by the eighth amendment. And I think one of the problems here is that the terminology of "weighing" conveys a false impression of predefined weights. And the attorney general conceded that that's not how juries consider the balancing of aggravating and mitigating circumstances. And we agree with that. And that's why it is wrong to view this as principally a burden-of-proof issue. It's not. The issue, at the selection stage -- the State certainly has the burden to prove an aggravating circumstance beyond a reasonable doubt, but, at the selection stage, the issue is not meeting some particular burden of proof, it's whether the jury has made a reliable, responsible, collective decision that this unique defendant deserves the death penalty that distinguishes him --

JUSTICE KENNEDY: It seems to me that --

MS. WOODMAN: -- from other death-eligible --

JUSTICE KENNEDY: -- that that --

MS. WOODMAN: -- defendants.

JUSTICE KENNEDY: -- that that hurts you somewhat. If you want to give us this visual metaphor of a scale, or a football field, where you move it beyond the 50 yardline, whatever visual metaphor you want, and you weigh, you balance where the scales of justice balances, it seems to me that that's a stronger case than saying the jurors can establish their aggravation, then they can take any mitigating factor they want, for any reason, and apply it. And they can't do that, because the defendant hasn't shown it. It seems to me that that's -- that that's a weaker argument than if you had this balancing mechanism that was our controlling metaphor.

MS. WOODMAN: Well, let's look at the way that equipoise can happen under the Kansas statute -- and I think Justice Alito alluded to it -- that if the jurors can't decide between aggravated and mitigating circumstances, the sentence is death. The statute decrees death, and --

JUSTICE KENNEDY: They already decided aggravating -- you can't say they can't decide it. They've already decided aggravating circumstances.

MS. WOODMAN: They've decided --

JUSTICE KENNEDY: And what they're deciding is that there's no mitigating circumstances to outweigh it.

MS. WOODMAN: What they've decided is that, in looking at aggravating and mitigating circumstances together, they can't determine, one way or the other, whether aggravators outweigh mitigators or mitigators --

CHIEF JUSTICE ROBERTS: But --

MS. WOODMAN: -- outweigh aggravators.

CHIEF JUSTICE ROBERTS: But how realistic is that as a possibility when you're talking about abstract concepts as mitigating factors, like how much mercy should be shown? I mean, do you really think there's any juror who's going to say, "All right, I'm giving -- I've found the aggravating circumstance that he killed two people, and I've found the aggravating circumstance that it was particularly heinous to slash the throat and leave the toddler to burn. But I also think that mercy ought to be shown. But, you know, it just happens to come up to exactly the level of the aggravating circumstances. So, I'm stuck. I don't know what to do." I don't think that's the way jurors would react. They either think that the need to show mercy or, the one before that, that he's a talented artist, outweighs the fact of the aggravating circumstances, or it doesn't. I just think it's an unrealistic supposition. And there's nothing in the statute -- they don't get an equipoise instruction. So, how -- I mean, is there any reason to think that jurors do come to that balance between such inchoate concepts in the first place?

MS. WOODMAN: Yes. I think it can occur in close cases. And, after all, those are the only cases where equipoise would even be relevant. And let me give you an example. Suppose there's a woman who wants to donate a million dollars to Yale Law School, and, as part of that donation, she's going to -- she has --

JUSTICE SCALIA: Is that an aggravating circumstance?

[Laughter.]

MS. WOODMAN: Well, bear with me for a minute, Your Honor. She has to choose a portrait of her beloved husband to hang in the law school. These portraits were taken at different times, they have different qualities, different features. And she has to choose one. And this decision proves extraordinarily difficult for her to make. And she compares the relative qualities of the two portraits. They're both good. She loved her husband. And she simply cannot choose between the two. And so, she does one of two things. One is that she just can't bear to debate with herself anymore about which one is the better-quality portrait; and so, she becomes agnostic about it and says, "I give up. Pick one." And so, she picks one. The other is that the decision is simply too difficult for her to make; and so, she abdicates that decision and says, "Let the dean pick."

And you can analogize that to the ways in which this statute can operate. And the jury can arrive at equipoise by becoming agnostic about the decision on whether -- on the balance between aggravating/mitigating --

CHIEF JUSTICE ROBERTS: I think your --

MS. WOODMAN: -- circumstances.

CHIEF JUSTICE ROBERTS: I think your analogy took away what I would have regarded as the basis for my question. I think it may well be true that people have difficulty deciding between two portraits. I'm not sure people come to the sense that someone who's guilty of allowing a 19-month-old to burn to death and slashing the throat of her mother thinks it's equally balanced when they're inclined to show mercy, for whatever reason. It seems to me they either make a determination that the circumstances of his upbringing, emotional instability outweigh the responsibility for what they have found to be aggravating factors, or they determine that the aggravating factors outweigh the fact that they may show mercy for other basis. I just -- I can see thinking two portraits are indistinguishable. I just don't see a juror functioning and saying, "I just can't decide whether to show mercy or to convict for death." And they're equally balanced. I understand the idea they may debate it with the other jurors, but, to come and say, "You know, I just can't decide," it seems to me that the -- particularly since they can put as much weight into the mitigating factors as they want -- they can say, "I want to show a lot of mercy," they can say, "I want to show a little bit of mercy" -- but to say that, "I want to show just enough mercy that is exactly balanced," I don't understand that.

MS. WOODMAN: Well, you see, individual jurors, in the course of deliberations -- this is a qualitative judgment, after all, and individual jurors, in the course of deliberations, might be leaning one way or the other at different times during deliberations. But what this equipoise provision does is that it allows the jurors to compromise on equipoise when they simply cannot deliberate anymore, or if they simply just want to avoid making the hard decision.

JUSTICE ALITO: Would it be constitutional if the Kansas statute said that, "The jury must find, by a preponderance, that the aggravating factors outweigh the mitigating factors"?

MS. WOODMAN: Yes.

JUSTICE ALITO: And wouldn't a defendant be better off under the current Kansas statute than under a statute like that, where, under the current statute, the jury has to find, beyond a reasonable doubt, that the aggravating factors and the mitigating factors are at least in equipoise?

MS. WOODMAN: Well, the jury does have to find equipoise beyond a reasonable doubt. But the fact remains that the jury is making that decision of equipoise, which requires the death sentence, without having made the individualized sentencing determination required at the selection stage under the eighth amendment. And that's the problem with the equipoise provision, because it allows the jury to avoid making that decision, which is --

JUSTICE ALITO: Well, I mean --

MS. WOODMAN: -- required.

JUSTICE ALITO: -- suppose the jury thinks that the aggravating factors outweigh the mitigating factors 51-49. Now, under the first statute that I hypothesized, that would result in a verdict of death, would it not? What would the result be under the -- under the current Kansas statute, where the aggravators have to be shown, beyond a reasonable doubt, to outweigh the mitigators?

MS. WOODMAN: Well, I think if the statute requires that the aggravators outweigh mitigators, this Court has upheld that formula. That is a decision that the jury has made. And the legislature can make that decision. And so, when you look -- that's why I'm trying to -- I mean, the State agrees that this is not a quantitative determination. And I will grant you, if the jury is -- if it were a quantitative determination, which is totally unrealistic, and we agree with the State's reasoning on that -- then if the jury is precisely exactly equivalent, 50-50, on aggravating and mitigating circumstances, that might be said to constitute a decision. But, as even the State argues, that's not how jury deliberations work. And under this equipoise provision, the jury can decree death without having made the individualized sentencing decision required at the selection stage. And it's because, on the one hand, if the decision is too close to call, the equipoise provision allows the jurors to simply give up and settle on equipoise as a group. This is a group decision, after all. They have to be unanimous on the question of whether aggravators --

JUSTICE STEVENS: May I ask you --

MS. WOODMAN: -- are not --

JUSTICE STEVENS: -- this question?

MS. WOODMAN: -- outweighed by mitigators.

JUSTICE STEVENS: Suppose the jurors are deadlocked, six to six, and you're not -- you don't know, maybe some are a little stronger there, but there's a deadlock. And what if the judge told them, "Well, in the event of a deadlock, you resolve it by flipping a coin." Would that be constitutional?

MS. WOODMAN: Absolutely not, because they're not making the decision that's required at the selection stage.

And to follow up on something that General Kline said during his argument, that the provision is for a hung jury, there's no provision for a hung jury in the event the jury finds itself in equipoise. The only provision for a hung jury, under the Kansas statute, is if the jury is unable to reach a verdict. But equipoise, does not prevent a death verdict. In fact, the statute requires a death verdict if the jurors are in equipoise.

CHIEF JUSTICE ROBERTS: But the verdict that the jury returns is a verdict of death. They do not return a verdict saying, "We're in equipoise," and then the death sentence is imposed by operation of law. The verdict imposed is, "We do not find -- we find these aggravating circumstances. We find they're not outweighed. And, therefore, we sentence the defendant to death."

MS. WOODMAN: Well, a determination of equipoise -- the jury has to find equipoise beyond a reasonable doubt, and that, necessarily, means that the aggravators are not outweighed my mitigators.

JUSTICE SCALIA: No, but --

MS. WOODMAN: That's how this statute was interpreted by the Kansas Supreme Court.

JUSTICE SCALIA: Yes, but I think -- I think the Chief Justice's point is that you're -- you're really not being accurate when you say, "The jurors can thereby avoid the difficult choice." They don't avoid the difficult choice. They're fully aware, under this statutory scheme, that if they don't find that the mitigators outweigh, they are condemning this person to death. That's the moral choice they're faced with. And when they come in with that verdict, they know what they're doing. And I consider that a moral -- a moral judgment on their part.

MS. WOODMAN: Well, the jury certainly knows that they are imposing a death sentence. But what this instruction and the prosecutorial arguments given in the cases tell them is that they can fulfill their responsibilities as jurors without coming to a final judgment about whether aggravators outweigh mitigators, or vice versa.

JUSTICE SCALIA: And you think that a juror who believes that this person shouldn't be -- shouldn't be sent to death -- that is to say, who believes that the mitigators outweigh the aggravators -- would join a jury verdict which produces the result that he's sentenced to death, right? I think that is so unlikely --

MS. WOODMAN: But in --

JUSTICE SCALIA: -- that he's going to say, "Well, I -- you know, I think he shouldn't go to death, but the aggravators and mitigators are absolutely evenly balanced, so I guess I've got to send him to death," I don't think any juror's going to do that.

MS. WOODMAN: But the fact that this is a group decision leads to even a greater risk of abdication of --

JUSTICE SCALIA: It takes only one --

MS. WOODMAN: -- that decision.

JUSTICE SCALIA: It takes only one to disagree.

MS. WOODMAN: But it's a group decision, and jurors are encouraged and forced to compromise to come to a verdict. And in close cases, with jurors leaning slightly one way or another, they, being forced to come to a consensus, are even more likely to compromise on equipoise, rather than engage in the draining task of persuading each person leaning one way or the other to come together.

JUSTICE SOUTER: But regardless of the likelihood of that situation in any given case -- and I happen to agree with Justice Scalia; I mean, I don't think the likelihood of that in a given case is great -- we're, nonetheless, I think, faced with the fact that the Supreme Court of Kansas says, "That can happen."

MS. WOODMAN: Absolutely.

JUSTICE SOUTER: "And if it does happen, the result is death." And I think we've --

MS. WOODMAN: That's right.

JUSTICE SOUTER: -- we've got to take that as a given. I mean --

MS. WOODMAN: That's right.

JUSTICE SOUTER: -- do you see any way out of it? I --

MS. WOODMAN: That's right. This Court is bound by the Kansas Supreme Court's interpretation of the statute. And what's happening here is, when the jurors do settle on equipoise, in whatever way they settle on equipoise, the fact of the matter that -- is that in either of -- either of the two cases I've -- well, either in -- in three cases I've described, the jurors are following their instructions, and, in either of these situations, the defendant is being sentenced to death only as a death-eligible defendant, because that's the only constitutionally required decision that's actually been made by the jury in that situation. And to go back to Justice Breyer's hypothetical about the box from the last argument, the legislature has determined that the individuals will be separated out as a result of equipoise, but there is nothing about that situation, them being in that box, that separates them from any other generic death- eligible defendant. And that's the problem with this equipoise provision. And, yes, the Kansas Supreme Court found that it can happen. This Court is bound by that interpretation. The State concedes that. And, therefore --

JUSTICE STEVENS: You mentioned the --

MS. WOODMAN: The --

JUSTICE STEVENS: -- Kansas Legislature. Has there been any suggestion the statute ought to be amended to get rid of this silly little problem?

MS. WOODMAN: Yes.

JUSTICE STEVENS: I don't mean to call it --

MS. WOODMAN: Yes.

JUSTICE STEVENS: -- silly little problem, but --

MS. WOODMAN: Yes, and I think --

JUSTICE STEVENS: -- the very narrow --

MS. WOODMAN: -- the Legislature is going to take that up again. And there's simply no consequence to anyone else by affirming the Kansas Supreme Court's decision in this case. The Legislature is going to take the matter up again. There's no question about that.

JUSTICE BREYER: Is there --

CHIEF JUSTICE ROBERTS: So, how is it --

JUSTICE BREYER: -- anything --

CHIEF JUSTICE ROBERTS: -- how is it -- is there any question about how it's going to come out when they take it up again?

[Laughter.]

MS. WOODMAN: Well, I wouldn't want to speculate on that. There are going to be arguments on both sides, certainly.

JUSTICE SCALIA: What if they still conclude, as they did before, that when these aggravating factors are found, unless there is mitigation to overcome them, it is the judgment of the people of Kansas that this person is deserving of death? What if they come to that conclusion again? You want us to tell them, "No, the people of Kansas cannot come to that, what seems to me, quite rational decision"?

MS. WOODMAN: Well, but there is no moral judgment, as has been stated here. There's no moral judgment. The State can -- the Legislature can determine that death is an appropriate sentence. The Legislature -- this Court upheld a legislative determination, when aggravators outweigh mitigators, in Blystone, that --

JUSTICE SCALIA: It's so silly to say that Kansas can circumscribe the moral judgment of the -- of the jury by saying, "You can take into account 18 aggravators, or else only two aggravators." That is a -- you know, a significant control on their moral judgment. But then to say that Kansas cannot circumscribe their moral judgment to the very limited degree of saying, "Unless you find that the mitigators outweigh the aggravators, the proper response is the death penalty."

MS. WOODMAN: But you cannot divorce the weighing process enacted by the legislature from the individualized sentencing decision required under the eighth amendment at the selection stage. And the equipoise --

JUSTICE SOUTER: But I --

MS. WOODMAN: -- provision.

JUSTICE SOUTER: If I -- if I may interrupt you, I -- your point, I take it, is, the jurors are going to make this decision, not the Legislature of Kansas.

MS. WOODMAN: That's right.

JUSTICE SOUTER: Okay.

MS. WOODMAN: And if the Legislature --

JUSTICE KENNEDY: But haven't the jurors made the decision that, "We have looked at all of the moral arguments that he has presented. Each of one of the -- of us has individually weighed them. Each one of us know that if we have any moral reason not to impose the death penalty, we can do it. And we make the moral judgment that we cannot make that determination."

MS. WOODMAN: But the --

JUSTICE KENNEDY: Moral judgment, from beginning to end.

MS. WOODMAN: This statute allows a third option of equipoise, which allows a jury to impose death without making that judgment.

JUSTICE BREYER: Okay, well, what do you say to --

JUSTICE KENNEDY: No, but that's -- your term is "equipoise." You say the jury has done nothing --

MS. WOODMAN: The Kansas Supreme Court's --

JUSTICE KENNEDY: -- you say the jury has done nothing. What the jury has done is, it's weighed all the evidence with great care, and it's said that, "Beyond a reasonable doubt, the mitigating circumstances do not overcome." That is a moral judgment.

MS. WOODMAN: But the --

JUSTICE KENNEDY: And you label it "equipoise."

MS. WOODMAN: The other possibilities are that the jury has found that, "We can't decide whether aggravators outweigh mitigators, or vice versa. And the statute tells -- the instructions tell us to impose death."

JUSTICE SOUTER: But I think Justice Kennedy is saying, when they make that determination, "We can't tell whether one outweighs the other," that they are making a moral judgment there. And what's your -- what's your answer to that?

MS. WOODMAN: That is --

JUSTICE SOUTER: He's saying they are making a moral judgment.

MS. WOODMAN: That is not a moral --

JUSTICE SOUTER: And they know what its consequence is.

MS. WOODMAN: That is not a moral judgment, because it says nothing about the personal culpability --

JUSTICE SOUTER: In other words you're --

MS. WOODMAN: -- of the --

JUSTICE SOUTER: -- saying moral --

MS. WOODMAN: -- defendants.

JUSTICE SOUTER: -- judgment has got to be an either/or judgment, not a "we can't figure it out" judgment.

MS. WOODMAN: Absolutely.

JUSTICE SOUTER: Okay.

JUSTICE BREYER: But the difficulty, I think, in the case is, it's artificial. I think it is. We're in an artificial situation, and we're imagining those 12 jurors saying they're in equipoise between mitigating and aggravating. We don't know. They -- even. All right. Now, you could look at this as saying, "You have to have a reason for thinking these people are -- this person is morally worse than the average." And then we imagine some fungible commodity, like moral badness units. And for every one we go up on the aggravating side, we go down on the mitigating side, so we're back to zero. And then, some people, like you, are looking at this and saying, "See, you're at zero. You went up, you went down, so they're no worse than the average." But other people can look at it and say, "We'll tell you about -- one thing about this individual. This is an individual who did do the aggravating things, and he has counterbalancing mitigating things, and that's good enough to separate him out, morally speaking, from somebody who doesn't.

Now, my problem is, you either look at it the one way or you look at the other way, and you -- and I'm trying to find a reasoned -- if you -- can -- do you want to add anything?

MS. WOODMAN: Well, I mean, the Kansas Supreme Court determined that equipoise can happen. And in the situations that I've described, there is a real risk under this statute that the jury can either become agnostic and just pick, and the statute requires them to pick death, or the jury, encouraged by prosecutorial arguments to abdicate the decision, do abdicate, simply cop out and impose death, because it allows them to avoid making the tough choice. And I think those are very real possibilities under this statute. The statute requires death in those situations, and it's the risk that this procedure poses that presents the problem. And this Court has always held that these kinds of risks of unconstitutional results are intolerable in capital cases. And we simply cannot look at a death sentence in Kansas and say, with any reliability at all, that this jury did not decree death by equipoise, that this jury made the reliable sentencing judgment required under the eighth amendment at the selection stage. We just can't say that under this statute.

JUSTICE KENNEDY: You think that under this instruction, a Kansas juror could say, "You know, I'm not interested in deliberating more. I'm not going to participate"? That's what you're want -- that's what you want us to believe, right, based on this argument? I -- that's just -- any juror -- any jury can ignore its instructions. There's nothing I can do about that.

MS. WOODMAN: Well, they're not --

JUSTICE KENNEDY: Here, they are instructed to consider every mitigating circumstance that's presented and determine whether or not that should be a factor in their decision.

MS. WOODMAN: They're not -- they're not ignoring their instructions at all. They're following their instructions if they arrive at equipoise. And the instructions and the prosecutorial arguments tell them to impose death. The prosecutorial --

JUSTICE KENNEDY: Well --

MS. WOODMAN: -- arguments are --

JUSTICE KENNEDY: Well, but you're suggesting that they kind of --

MS. WOODMAN: -- perfectly in line.

JUSTICE KENNEDY: -- that they can tune out.

MS. WOODMAN: It's not that they're tuning out. They take their jobs very seriously. But what they are encouraged to believe by the instructions and the prosecutorial arguments is that they will fulfill their responsibilities as jurors without coming to a final judgment on whether aggravators outweigh mitigators or vice versa. And it's the risk that they will do that, that makes this statute unconstitutional. And the Kansas Supreme Court determined that there is such a risk of equipoise under this statute that it cannot comply with the eighth amendment.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Woodman.

General Kline, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF PHILL KLINE

ON BEHALF OF PETITIONER

MR. KLINE: Thank you, Mr. Chief Justice.

First, referring to Justice Scalia's question as it relates to other States that are affected, in the joint appendix, pages 98 through 107, you have a summary, and, additionally, in the amici brief that was filed by several States, on page 23, it identifies Arizona, Florida, Nevada, North Carolina, Oklahoma, and Missouri as having similar provisions. And, additionally, the cases that have relied on Walton to determine that the equipoise issue has been resolved are the Eleventh Circuit, in Jones v. Dugger, the Arizona Supreme Court. And in State v. Gretzler, they found that the provision provided for equipoise, as well as in Idaho, in State v. Hoffman.

As it relates to a juror somehow imposing death when they are undecided, I would direct you to page 26 of the joint appendix, at instruction number 9, which reads, "The Defendant is entitled to the individual opinion of each juror. Each of you must consider the evidence for the purpose of reaching a verdict. Each of you must decide the case for yourself."

Furthermore, the jury is instructed, in instruction number 12 in the second paragraph on page 28 of the joint appendix, that, "In order to reach a verdict in the case, your decision must be unanimous. And then, after reasonable deliberation, if you are unable to reach a unanimous verdict, you shall notify the Court, and the result is a life sentence."

Kansas law is very clear that death is only appropriate in the singular instance in which a jury has found beyond a reasonable doubt with unanimity that the defendant is guilty of capital murder, that an aggravating factor exists, and then that the mitigating factors do not outweigh the aggravating factors.

It was in 1994 that the Kansas Legislature passed the death penalty in Kansas, a few years after the Walton decision. And I was there for the debate, as a legislator. It was a compelling moment, not just because of the result, but the solemnity and seriousness of the debate in which they were seeking to define, through their reasoned moral judgment, what justice demands in instances such as this.

And recognizing this Court as the final arbiter of the meaning of the eighth amendment, you will see, through pages 23 through 28 of your appendix, your words mirrored back to you. The Legislature has respected your judgment and made the reasoned moral decision that death is appropriate in the instances --

JUSTICE ALITO: Was there a particular --

MR. KLINE: -- that we are discussing.

JUSTICE ALITO: -- was there a reason why they provided that, in the case of equipoise, the sentence would be death? Or is that just a quirk of the way the provision was written?

MR. KLINE: In the debate, all of these decisions were discussed through committee as well as on the legislative floor. And the belief was, in these various aggravated and narrow circumstances, that the State believes death is appropriate. And if we followed the individualized sentencing line of these cases and allowed a jury to consider all of the mitigating evidence that is relevant, that the State could make that decision.

Thank you, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you, General Kline.

The case is submitted.

[Whereupon, at 1:54 p.m., the case in the above-entitled matter was submitted.]

Attribution:

The Oyez Project

Oregon v. Guzek - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

Oregon v. Guzek

Media File:

04-928_20051207-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Mary H. Williams

Chief Justice Roberts: We'll hear argument first this morning in Oregon versus Guzek.

Ms. Williams.

Mr. Williams: Mr. Chief Justice, and may it please the Court--

The eight amendment requires that a sentencing jury in a capital case must consider mitigation, which this Court consistently has defined as related to a defendant's background, character, or the circumstances of the offense.

The Oregon Supreme Court in this case has broadly construed circumstances of the offense to include evidence that is inconsistent with the defendant's guilt.

That holding is not constitutionally compelled and does not further the purpose of having the sentencing jury consider mitigation.

Justice Breyer: Can you--

Justice O'Connor: Is it--

Justice Breyer: --Can you--

Justice O'Connor: --possible that the Supreme Court of Oregon misapprehended some of the facts in this case?

Mr. Williams: Justice O'Connor, it is possible that the Supreme Court was not aware that defendant's mother had testified in the--

Justice O'Connor: Right.

Mr. Williams: --guilt phase, and that's because defendant did not raise that issue in the trial court, did not move to have her alibi testimony admitted under the State statute that would have caused the Court to address her prior--

Justice O'Connor: Do we--

Mr. Williams: --testimony.

Justice O'Connor: --need to vacate the judgment and remand for that, or--

Mr. Williams: No--

Justice O'Connor: --do we just go ahead and--

Mr. Williams: --No, Justice O'Connor, I don't believe that there needs to be any change in the posture of the case in order... in order for the Court to address the Federal issue, and that's because the significance of the Oregon Supreme Court ruling doesn't turn on whether someone's testimony was admitted in the guilt phase, or not.

Justice O'Connor: --Well, under Oregon law, is it possible that some of the mother's testimony would be otherwise admissible at the penalty stage?

Mr. Williams: Under Oregon law, under the majority's holding in this case and the way they dealt with the grandfather's prior testimony, on remand defendant could have the mother's transcript from the guilt phase read, but what would be different about it under the Oregon Supreme Court holding, and what we're asking the Court to address, is what they can do with that alibi testimony, no matter what form it comes in.

And that's the significant part of the Supreme Court holding.

Justice Kennedy: Well, I... may... I want you, perhaps, to elaborate on that, as well.

And perhaps the Respondent is the one to answer this question.

Do you understand that they, on remand, if they prevail in this case, would want to introduce the mother's live testimony?

Mr. Williams: I am not sure.

Under the--

Justice Kennedy: We're not sure--

Mr. Williams: --Oregon Supreme--

Justice Kennedy: --all right.

Mr. Williams: --Court holding, they would certainly be free to introduce her live testimony.

It's very clear from the Oregon Supreme Court decision that any alibi evidence comes in, and that's not limited to evidence that was presented in the guilt phase, or even witnesses who had been in the guilt phase.

And... but coming back to what the court's holding focuses on is how that alibi evidence can be used in the remanded proceeding.

And not only does it come in, and the primary statute on... that they dealt with for the grandfather's testimony is really a statute that deals with admissibility of evidence... prevents the parties from having to go through making foundations and other showings in order to get evidence admitted.

But, under the Oregon Supreme Court holding, defense counsel can argue, based on that evidence, that the jury should consider the possibility that defendant is innocent, as a mitigating factor in determining the sentence.

Justice Breyer: --Well, can't you under... look, first imagine that they don't want to introduce one word from the mother's mouth that isn't already in that transcript.

Imagine that's the circumstance.

If that's the circumstance, then I should think there is no doubt, under Oregon law, that those words in the transcript are admissible.

And I believe that under Oregon law... and I'm not certain... that, an ordinary case, a death eligible person does have the right to argue in the sentencing proceeding.

Think back over that trial jury and you will see that there are doubts as to whether this man is guilty or not.

Am I right... am I right on the first part?

Am I right on the second part?

Mr. Williams: Justice Breyer, you are correct on the first part, but not on the second part, and that's because Oregon Supreme Court unanimously has construed Oregon's law on mitigation to say that what the Oregon Legislature intended was to have as mitigation only those pieces that are required by the eighth amendment.

Justice Breyer: All right.

In other words, prior to this case, in the State of Oregon, where there was a death case... maybe there weren't very many, but where there was one, under Oregon law... we have the trial; immediately thereafter, the sentencing, and the lawyer had no right to argue, under Oregon law.

Think back about your certainty as to whether this individual is guilty.

Mr. Williams: That would be correct, Your Honor, that--

Justice Breyer: Yes, all right.

Mr. Williams: --unless the eighth amendment--

Justice Breyer: And did the court say, here... the Oregon court, in this case... one, "You can introduce evidence", which it seems to have been mistaken about, about not being there, but that, second, the Federal Constitution gives you the right to argue the residual doubt?

Mr. Williams: --Yes, Your Honor.

And that's most clear, from the dissent, as characterizing the question that the Court is addressing.

And the Oregon Supreme Court opinion is in the efficient... excuse me... the appendix to the cert petition.

And at page 68 of the appendix from the dissent, Justice Gillette writes,

"The issue in this case is whether under the emphasized wording of that statutorily required jury instruction. "

referring to the mitigation question,

"defendant was entitled to have the jury consider the evidence that he proffered. "

"The majority says he was. "

"I disagree. "

Justice Breyer: Ah.

"Consider the evidence" is different from

"making an argument about the evidence. "

And what I didn't see in the argument, majority opinion, is a statement that not only can this evidence be introduced... because, after all, in a normal case, the jury's heard it--

Mr. Williams: Yes.

Justice Breyer: --It's the same jury.

But I didn't see, anywhere, where they addressed the question about what kind of argument the defense had the right to make at the sentencing trial in respect to the residual doubt that they might have from what they just heard.

Can you point, in that opinion, to where they made that statement that you just said they made about the argument?

Mr. Williams: About the argument.

Where I read... no, I cannot point to specific language in the majority opinion that says

"and defense counsel gets to make an argument based on this, and the jury must consider that. "

That comes from this Court's case law of how mitigating evidence must be treated once it is--

Justice Kennedy: You want--

Mr. Williams: --required to be--

Justice Kennedy: --You want us to hold that.

You want us to say that a defense counsel can be admonished by the judge not to make the argument that,

"Ladies and gentlemen, this is the final penalty. "

"My client claims he's innocent. "

"If, in 20 years, it turns out that there is evidence exonerating him, it will be too late. "

"I want you to consider that and give him life. "

You can't make that argument.

Mr. Williams: --Yes, Your Honor, I... our position is that the eighth amendment does not require that as a mitigating factor, that that is not one of the circumstances of the offense, certainly not... it doesn't go to the defendant's character or background.

Justice Scalia: Ms. Williams, I don't... I don't understand all of this discussion about what the... whether the State law would have produced the same result, or not.

We have never held, have we, that, where a State Supreme Court opinion clearly rests on a Federal ground, a Federal constitutional ground, we do not have jurisdiction if there is a possible State ground that would have left to... led to the same result?

Have we ever held that?

Mr. Williams: No, Justice Scalia.

In fact--

Justice Scalia: And we've said just the opposite, haven't we?

Mr. Williams: --Yes, Justice Scalia.

Justice Breyer: Well, that isn't the thrust of my question, of course.

The thrust of my question is that if, in fact, this evidence from the mother comes in under State law, it comes in under State law, because... I have the cite; you know the--

Mr. Williams: Yes.

Justice Breyer: --section I'm referring to.

If it comes in under State law, and they're not trying to prove anything else, and the holding of the Oregon Supreme Court is about what evidence is admissible, and not about what arguments to be made, I don't see what reason we would have to reach an issue that isn't in the case.

Mr. Williams: And, Justice Breyer, I think the primary reason that the State is concerned with it is because of the broad holding that the Oregon Supreme Court has announced under... about what eight amendment requires.

When you combine that with what this Court has said about what that means when evidence is mitigating evidence, then I think a necessary corollary of the Oregon Supreme Court holding is that defense counsel does get to make that argument, and that the jury must--

Chief Justice Roberts: But there's no--

Mr. Williams: --be permitted--

Chief Justice Roberts: --reason that the defendant couldn't introduce other evidence in his resentencing trial, is there?

Mr. Williams: --Under the--

Chief Justice Roberts: I mean, if he has other... he says,

"I have other witnesses that go to the residual doubt question. "

and I would... you know, on retrial, if he prevails here, presumably he would be entitled to put in that evidence, as well.

Mr. Williams: --That's correct, Mr. Chief Justice.

The Oregon Supreme Court's conclusion is very broad, that any alibi evidence comes in, and, as the dissent notes, that it also would not be limited simply to alibi evidence, but any evidence that is inconsistent with the guilt verdict in this case that would form a basis for arguing that doubt about the defendant's guilt should be a factor that the jury considers in responding to the mitigation question that--

Justice Kennedy: Let me--

Justice Stevens: But what do we do with the case--

Justice Kennedy: --ask you--

Justice Stevens: --if your opponent acknowledges that... or stipulates, in effect, that he's not going to put anything in except what's already in the transcripts?

Then do we have a case?

Mr. Williams: --I think you still have a case, Justice Stevens--

Justice Stevens: Is it--

Mr. Williams: --because--

Justice Stevens: --about the right to argue?

Is that what it is?

Mr. Williams: --It's about the right to argue and what the jury is told to do with that.

And it's also that the State is going to have to live with this decision in other capital cases, and other capital defendants--

Justice Stevens: Yes.

But our--

Mr. Williams: --may not be willing to--

Justice Stevens: --jurisdiction is limited to reviewing a final judgment in this case.

Mr. Williams: --Yes.

Justice Stevens: We can't give an advisory opinion which would tell you what to do in other cases, which... if that's all it does.

Mr. Williams: But I do not believe that a party can force the Court into that position by stipulating that, although the State Supreme Court holding permits it--

Justice Stevens: But would they're--

Mr. Williams: --to do much more--

Justice Stevens: --they would be giving up the right that you claim you don't want them to have.

Mr. Williams: --But they would give it up in a way that would basically lock the State into a box.

We couldn't get--

Justice Stevens: For other cases--

Mr. Williams: --review here, we couldn't get--

Justice Stevens: --but not for this case.

Mr. Williams: --review.

Not for this case--

Justice Stevens: Yes.

Mr. Williams: --that's correct.

Justice Stevens: That's why I'm concerned that perhaps we're being confronted with a request for an advisory opinion.

I don't know.

Maybe they haven't categorically agreed to what... they may be going... willing to say that they aren't going to put anything else in.

I don't really know that yet.

Mr. Williams: But I think their stipulation would have to have two parts... one, that they wouldn't put anything else in that wasn't presented in the guilt phase; and, two, that they wouldn't argue that, based on that evidence, the jury should consider doubts about the defendant's guilt in deciding what the appropriate sentence is.

Justice Stevens: We may... we may not have held they have a constitutional right to make that argument, but do you... do you think that the State... that you did... you don't think they could even make the argument as a matter of State procedure or anything at all?

Mr. Williams: Not on the mitigation question, Your Honor.

And that's because of the way the Oregon Supreme Court has construed the mitigation question, and has construed it to mean that only that which the eighth amendment requires is to be presented to the jury.

The Legislature adopted that provision in response to this Court's mitigation case law, and that's what they were intending to implement, and nothing more than that.

I think States are free to do more, but Oregon has not, as a matter of how the Oregon Supreme Court has--

Justice Breyer: Well, why is--

Mr. Williams: --construed the statute--

Justice Breyer: --What about Oregon revised stat 163.150?

It says,

"In a capital sentencing proceeding, the court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing. "

Now, that's Oregon law.

It's long been there.

What possible reason could Oregon have for having that provision, which is,

"Jury, you shall consider all the evidence you've just heard at the guilt phase of the trial? "

What reason could that be?

How is it supposed to be relevant, "all evidence", unless it's relevant to the question of whether there is doubt?

Mr. Williams: --Justice Breyer, I'd point you to the... an earlier part of that same section of the statute that says,

"Evidence may... in the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. "

And their--

Justice Breyer: But that's a different provision.

I'm now thinking of the "normal case", where you hear the guilt phase, and now we're in the sentencing phase, and it says here, under Oregon law,

"Judge, tell the jury that everything they previously heard at the guilt phase they may consider for purposes of what sentence they should impose. "

I just wonder what that sentence is doing there in Oregon law, unless the jury is supposed to think about whether this guy's really... "I'm completely certain he's guilty".

Mr. Williams: --There... it does serve a different purpose, Your Honor, and that is that... when you read the entire section, what it... what it does is, it says that, first of all, parties may present additional evidence, if it's relevant.

The... they cannot present repetitive, or cumulative, evidence that had been presented earlier.

And then, the court's supposed to inform that jury that what had come in the guilt phase may be considered in the penalty phase.

And so... and we've had the--

Justice Scalia: I suppose that if that provision weren't there, the court would have to decide, item of evidence by item of evidence, which pieces, that the jury has already heard, were relevant to the penalty, and not to the guilt.

Whereas, by just allowing everything in, but just telling the jury,

"You only consider it insofar as it goes to the penalty, and not to the guilt. "

we... the court does not have to enter into that item by item discrimination.

Mr. Williams: --Justice Scalia, what it does is, it allows the jury to know that just because something hasn't been re presented to them in the penalty phase, but came in, in the guilt phase, it's open for their consideration.

Justice Ginsburg: Without any clue--

Mr. Williams: What it doesn't do--

Justice Ginsburg: --without any clue whether there's a relevance test?

I mean, here we're talking about alibi evidence.

If the determination of guilt is final, then alibi is irrelevant at the penalty stage.

That's why I found that statute so puzzling, that the jury doesn't have a clue.

They're told,

"Everything from the guilt phase comes in, you can consider. "

but it doesn't sort out, doesn't even tell them, relevance.

Mr. Williams: --And, Justice Ginsburg, other jury instructions will inform the jury how to use what evidence.

And this does not mean that evidence that has been presented is relevant for any purpose that anybody wants to put it to in the guilt phase.

Justice Scalia: That isn't the basis on which the court decided this case, is it?

Mr. Williams: No, sir.

Justice Scalia: What we're saying here is that this is a possible basis on which the Oregon Supreme Court might have decided this case.

They did not decide it on that case... on that ground.

They decided that the jury has to be able to consider doubt, not because of that provision of the statute, but because of the eighth amendment.

And--

Mr. Williams: Yes, Your Honor.

Justice Scalia: --And--

Justice Ginsburg: No, I wasn't suggesting anything other than what Justice Scalia said, but I was just curious about this statute that tells the jury, "You can consider everything", and gives them no guidance, because some of it might be quite inappropriate for them to consider.

Mr. Williams: And the guidance does come from the other instructions that tell the jury what the specific questions are that they must answer in the penalty phase, and what they take into account in answering those questions.

Justice Souter: But--

Justice Scalia: --What has our constitutional law regarding the requirement of allowing the jury to consider all mitigating factors... the requirement that they have to be allowed to be take into account of that... what guidance has that provided?

Has our constitutional law said what constitutes a mitigating factor?

Mr. Williams: In... it has.

And I believe that in Franklin versus Lynaugh, this Court came very close to deciding this question, that residual doubt is not one of those mitigating factors.

Justice Scalia: Apart from that, apart from the fact of whether the person's guilty or not, have we specified what factors the jury can take into account by way of mitigation?

Mr. Williams: There are some factors that the Court has described as being required as appropriate for mitigation.

So, age, the mental state of the individual, the--

Justice Scalia: Don't you think that if a State listed specific factors that could be taken into account, and no others, that there would be considerable doubt whether this Court would allow such a statute to stand?

Mr. Williams: --I think certainly with respect to the background and character of the defendant, but the question here would be a fairly limited restriction to say that circumstances of the offense presume that the offense has occurred and that the defendant is guilty; and so, evidence inconsistent with that guilt is not a circumstance of the offense.

And I'd like to reserve time for rebuttal.

Argument of Kannon K. Shanmugam

Chief Justice Roberts: Thank you, Ms. Williams.

Mr. Shanmugam.

Mr. Shanmugam: Thank you, Mr. Chief Justice, and may it please the Court--

It does not constitute cruel and unusual punishment to prohibit a capital defendant from relitigating his guilt at sentencing.

Contrary to the reasoning--

Chief Justice Roberts: Do you have any view on whether this question is properly before us, given the Oregon statutes?

Mr. Shanmugam: --Mr. Chief Justice, our view is that this Court certainly could reach the constitutional question presented.

And, indeed, there are good reasons that this Court should.

The Oregon Supreme Court squarely confronted, and resolved, the Federal constitutional question, and it is ripe for this Court's review.

It is true, as Justice O'Connor suggested at the outset, that the Oregon Supreme Court appears to have been laboring under a factual misimpression... namely, that Respondent's mother did not testify at the initial trial.

That having been said, it appears to be clear that Respondent was seeking... and is still seeking, even before this Court... to introduce the live testimony of his mother.

Justice Souter: But--

Mr. Shanmugam: And the--

Justice Souter: --But, based on what you have just said, which was my understanding, too, assuming the Oregon Supreme Court made the assumption that the mother's testimony had not been admitted at prior trial, the only thing that the Oregon Supreme Court was ruling on was the admissibility of new testimony, and the use to which new testimony could be put, right?

Mr. Shanmugam: --Well, that is correct, Justice Souter.

Justice Souter: So that if the--

Mr. Shanmugam: I do think--

Justice Souter: --if the other side says,

"We totally give up any claim to introduce new testimony. "

then don't we have a jurisdictional problem?

Mr. Shanmugam: --Well, I think that we would agree with the State of Oregon that a necessary implication of the Oregon Supreme Court's holding, albeit unstated, was that a defendant is constitutionally entitled to argue residual doubt, as well as to present evidence of residual doubt.

Were that not true, the failure to admit the evidence would, in some sense, be harmless, since it is true, certainly to some extent, that the mere presentation of the evidence might lead to the jury taking it into account even absent an argument or instruction to that effect.

But, as a practical matter, this Court has never distinguished, in its consideration of mitigating factors, between the presentation of argument or evidence and obtaining--

Justice Souter: Oh, we--

Mr. Shanmugam: --an instruction--

Justice Souter: --have not, but it's possible for, it seems to me... for all we know, it's possible that Oregon could say,

"Look, we have a statute that says everything that was introduced at trial may be considered. "

"That may be a good thing or a bad thing, but that's what our statute says, and they may consider it. "

"But when the question comes, What new evidence may be admitted at the sentencing hearing... the sentencing phase only, then we're going to restrict that only to evidence which, in our view, is required by the eighth amendment. "

So, if that is, then... we don't... I don't know whether the Oregon Supreme Court took that view, or not.

But if it did take that view, and, in this case, the Respondents say,

"We no longer want to introduce any new evidence. "

then we would not have a case left, it seems to me.

Mr. Shanmugam: --Well, I think that that is true, to some extent, Justice Souter, but I do think that... at least with regard to the question of what factors are relevant to the ultimate determination, that is governed by a quite different statutory provision.

And the Oregon Supreme Court construed that provision to limit the mitigating factors that the jury can take into account to those that are mandated by the eighth amendment.

Justice Kennedy: Well, on that--

Mr. Shanmugam: And I would further note--

Justice Kennedy: --on that substantive point, it does seem... I assume a Governor could take this into account in clemency?

Mr. Shanmugam: --Yes, certainly.

Justice Kennedy: And I suppose the Governors can do more than juries can.

But, still, it seems odd to me that a jury cannot consider that this is a close case.

It's been proven beyond a reasonable doubt, of course.

It goes at least to whether or not the defendant is obdurate in not accepting guilt.

He says, "I didn't do it".

Mr. Shanmugam: Well, acceptance of responsibility may present different issues, but we would submit that the fundamental problem with the constitutional rule that the Oregon Supreme Court did expressly adopt is that it would effectively allow jurors, at their discretion, to apply what is a higher standard of proof at capital sentencing than the reasonable doubt standard, which, after all, is the standard that applies in all other criminal contexts.

Justice Kennedy: Well, no, the evidence goes to explain why the defendant is taking the position that he does.

He said, "I wasn't there".

Now, it's true, the jury, in the guilt phase, found that he was--

Mr. Shanmugam: Well, the jury did--

Justice Kennedy: --at least it explains his attitude, his demeanor, his refusal to accept responsibility.

There's a reason for that.

Mr. Shanmugam: --Well, the jury did determine, at the guilt phase, that the defendant was guilty beyond a reasonable doubt.

And the fundamental point of the reasonable doubt standard is that it is the highest standard of law... of proof known to the law, short of absolute certainty.

And I think, turning to this Court's case law in the mitigation area, this Court has, time and time again, limited mitigating evidence to evidence concerning the character or record of the defendant and the circumstances of the offense.

And the reason for that, I think, is that the very concept of mitigating evidence really does presuppose that the defendant has committed the crime in the first place.

To put it another way, mitigating evidence is evidence that suggests that a defendant who has committed the crime is somehow less deserving of the death penalty.

And going back to--

Justice Kennedy: Well, it would follow from that, that if a State wanted to exclude the defense evidence on alibi from a sentencing jury's consideration... let's assume it's a new... a new sentencing jury... they could do that.

Mr. Shanmugam: --Well, we believe that that would be permissible.

And I think, going back to the joint opinion in Woodson versus North Carolina, which was really where this constitutional requirement of mitigation was first recognized, this Court did not suggest in any way that, to the extent that individualized consideration at sentencing is mandated, a jury is entitled to consider any and all factors that it might think is relevant.

Instead, the Court really recognized a category of mitigating factors that is limited to factors that are traditionally taken into account at sentencing... namely, the character or record of the defendant and the circumstances--

Justice Stevens: Of course, that's true--

Mr. Shanmugam: --of the offense.

Justice Stevens: --with respect to putting in new evidence.

I understand your point.

But there... as a realistic matter, do you think it's possible to prevent a juror from deciding,

"I thought it was really a closer case than beyond a reasonable doubt; and so, I'm a little hesitant about the death penalty? "

There's no way to prevent that--

Mr. Shanmugam: I think--

Justice Stevens: --from happening.

Mr. Shanmugam: --as a practical matter, it may be very difficult to--

Justice Stevens: Yes.

Mr. Shanmugam: --prevent it.

I'm not sure that it is necessarily desirable for jurors to do that.

And there is some suggestion, in the empirical evidence, that what actually goes on in the jury room is that jurors with some level of doubt about a defendant's guilt will actually negotiate with other jurors to ensure that a defendant is convicted, but ends up not being sentenced to death.

Justice Ginsburg: But there's... used on the other side and as a policy model, the model penal code, I think, says it's okay.

It... not really that it's okay.

It should be considered.

Mr. Shanmugam: Justice Ginsburg, the model penal code does say that.

It was adopted, I think, in 1962.

And I think that it is telling that, in the years since 1962, since this Court recognized that the death penalty was constitutional again in the 1970s, no State has expressly adopted a statute that permits consideration of residual doubt in--

Justice Scalia: When you--

Justice Ginsburg: But there are a number of States that do--

Mr. Shanmugam: --To be sure, there are courts in several States... I think we identified seven in our brief--

Justice Ginsburg: --Your--

Mr. Shanmugam: --that have--

Justice Ginsburg: --position is--

Mr. Shanmugam: --recognized--

Justice Ginsburg: --that it's up to the States, I take it, but it's not compelled by the eighth amendment.

Mr. Shanmugam: --That's exactly right, Justice Ginsburg, just as it would be up to the States, at their discretion, to decide to simply adopt a higher standard of proof across the board in capital cases.

A State could certainly decide to adopt an absolute certainty standard.

But I think my point is simply that no State has expressly permitted consideration of residual doubts.

Courts have construed statutes in some States to permit it, typically because those State statutes contain broad language either with regard to the definition of "mitigating factors" or with regard to the discretion the jury has in making the ultimate sentencing determination.

Justice Scalia: --So, you think... you think the Oregon Supreme Court might well come out that way, if it wished, although not resting on the eighth amendment?

Mr. Shanmugam: Might come out that way with regard to the right of a defendant to, say, argue residual doubt?

Justice Scalia: Yes.

Mr. Shanmugam: Well, there's no indication of that on the face of the opinion.

And I think that, in some sense, it would be quite difficult for the Oregon Supreme Court to do that, having construed the statute that governs the determination that the jury actually makes at sentencing, to limit the factors that the jury can consider to those that this Court has recognized are constitutionally mandated under the eighth amendment.

So, as a practical matter, I think the Oregon Supreme Court's reasoning in this case really forecloses that interpretation.

If the Court has no further questions, we would ask that the Court vacate the decision--

Thank you.

Argument of Richard L. Wolf

Chief Justice Roberts: Thank you, Counsel.

Mr. Wolf.

Mr. Wolf: Thank you.

Mr. Chief Justice, Associate Justices, may it please the Court--

Hopefully, I can simplify this matter for the Court.

As is set forth in our brief, and in our motion that was recently filed, Mr. Guzek does disclaim any reliance on the eighth amendment of the United States Constitution as a basis for admitting, at his retrial--

Chief Justice Roberts: Well, but that doesn't matter.

I mean, the question is what the Oregon Supreme Court did, and it's quite clear that it based its decision on the eighth amendment, not these various provisions of Oregon evidence law.

Mr. Wolf: --Well, with all due respect, Mr. Chief Justice, if Mr. Guzek does not intend to rely upon the eighth amendment, I think that this would moot the case and that the... this Court could then vacate that portion of the Oregon Supreme Court's opinion.

Chief Justice Roberts: You argue in... an eighth amendment case in the Supreme Court, you win on the eighth amendment, then you leave the courthouse and say,

"Well, I don't want it anymore. "

and you think that moots the case?

Mr. Wolf: Well--

Chief Justice Roberts: It's still a decision, binding in this case, giving you the right to admit any evidence on residual doubt in the retrial.

Mr. Wolf: --Well, I respectfully disagree.

In... because, in fact, we didn't really argue, in the Oregon Supreme Court, that we were entitled, necessarily, under the eighth amendment.

Our argument was primarily under the statute, that this statute says any evidence which came in should be admitted in the retrial.

Chief Justice Roberts: But you don't question, or doubt, that the State Supreme Court decision was based on the eighth amendment.

Mr. Wolf: That's correct.

Chief Justice Roberts: Okay.

Justice Scalia: So, if we vacate it and the case is remanded on that ground, I assume it's still open for you to point out to the Oregon Supreme Court that they were in error about the... about the status of the testimony that you tried to get in, and have it admitted on that ground.

Why isn't that the way to handle the matter, rather than your--

Mr. Wolf: That--

Justice Scalia: --as you express it, "mooting the case"?

Mr. Wolf: --Well, that... we believe that we are entitled to present it under State law, and we think that is the resolution.

Justice Scalia: Of course, that... there would still remain... whether you mooted the case, or whether we vacated and then it was left to the Oregon Supreme Court whether to let this evidence in... there would still remain the question of what kind of an instruction the jury can be given regarding the consideration of this evidence for purposes not of determining whether a guilty person should not be given the death penalty, but, rather, for purpose of considering whether the guilt is clear enough.

I mean, that's... that issue would still remain, wouldn't it?

Mr. Wolf: Well, not necessarily.

I--

Justice Scalia: Why wouldn't it?

Mr. Wolf: --Well, I think, under Oregon law, we are entitled to put on... well, first we have to distinguish between these unitary juries and these retrial juries, because, of course, the retrial jury has not heard the evidence from the guilt/innocence phase, from the original trial.

And in the event that a retrial jury is hearing... they're hearing this evidence for the first time, and the State should not be permitted to just put on the evidence that they think helps aggravate the case.

Justice Scalia: No, I understand, but what are you... what are you going to argue to that jury?

Are you going to argue to that jury, you know, that,

"Yes, my client has been convicted, but the evidence of his guilt was really not all that clear, and you should take that into. "

--don't you want to make that argument?

Mr. Wolf: Well, that's a potential argument.

Justice Scalia: And the Oregon Supreme Court says you can make that argument, because the eighth amendment requires you to be able to make that argument.

Mr. Wolf: But we think--

Justice Scalia: --And what the State says is,

"No, the eighth amendment requires no such thing. "

So, the issue hasn't gone away.

It's still here.

It's here in this very case.

Mr. Wolf: Well, we think we're entitled to make it, under Oregon law, in a... regardless of whether we're entitled to make it under--

Justice Scalia: What the--

Mr. Wolf: --eighth amendment.

Justice Scalia: --No, no, no.

You're entitled to get the evidence in, under Oregon law, but the question of how that evidence can properly be used by the jury has been decided by the Oregon Supreme Court only on the basis of the eighth amendment, not on the basis of any Oregon statute.

Mr. Wolf: I disagree, Justice Scalia, because the court has said that this evidence, regardless... with respect to the grandfather... regardless of its substance, is to be admitted.

And if it's to be admitted, it is to be considered.

The statute with--

Justice O'Connor: But considered--

Mr. Wolf: --which Justice Breyer--

Justice O'Connor: --for what?

That's the problem.

I mean, here is someone who's been found guilty beyond a reasonable doubt.

Mr. Wolf: --Correct.

Justice O'Connor: And I don't see how it's relevant to go in at sentencing and say,

"Oh, but there are all these doubts. "

I mean, by finding "beyond a reasonable doubt", there isn't a reasonable doubt left.

Mr. Wolf: The--

Justice O'Connor: You... I don't see how that's open to argument.

You can say,

"Consider the evidence that shows he's a good person underneath it all. "

or,

"There... he has some moral values that ought to be respected. "

or something like that, or,

"He's capable of doing good things. "

But I don't see how you can argue doubt.

Mr. Wolf: --Well, first of all, we never did argue doubt.

The words "residual doubt" never occurred in this... in the trial court, they never appeared before the Oregon Supreme Court.

Lingering residual doubt was never argued.

But in the hypothetical case, the defendant is entitled, and the statute instructs the jury, to consider the evidence from both phases of the trial for all... for the sentencing purposes.

And the Oregon statute is sui generis in the sense that we have a statute that has four questions the jury must answer beyond a reasonable... the first three must be answered beyond a reasonable doubt.

And these are factual questions related to the crime.

Did the defendant act deliberately?

So, in essence, what we have is... a case which is charged as an aggravated murder does not make the defendant death eligible at that point.

The defendant is not death eligible until he is first convicted of aggravated murder beyond a reasonable doubt, and then, in the penalty phase, he is found to have committed the act deliberately, he is found to have... the victim should not have... did not provoke him, and his response was unreasonable to that.

Justice Scalia: In the penalty phase.

Mr. Wolf: Correct.

Justice Scalia: In the penalty phase?

Mr. Wolf: It has not--

Justice Scalia: Hasn't he already been found in the guilt phase?

Mr. Wolf: --No.

No, Your Honor.

Those are penalty phase--

Justice Scalia: You--

Mr. Wolf: --questions.

Justice Scalia: --You can be found guilty of murder when you didn't intend to kill?

Mr. Wolf: No, you must be found guilty of intentional murder.

But, in the penalty phase, the very first question in our statute, which appears in the appendix of the State's brief, is whether the conducts of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of deceased, or another, would result.

So, it's additional mental state, a factual determination, that goes beyond whether you intentionally caused death.

That--

Justice Scalia: It seems to me to be very strange, because I think our cases require that for death eligibility, and--

Mr. Wolf: --Well, I don't disagree with you, Your Honor, and... however, our petition in this matter was not granted.

But the... this... that is the... the point is that our statute is very unique.

I don't know of any other--

Justice Stevens: I have two questions, if I may.

One... of course, that wouldn't... the alibi evidence would already have been rejected, whether there was deliberateness or not, so that would not support putting in the alibi evidence.

But the second question I have... I wanted to be sure we're clear on... do you intend, on the future hearing, to introduce anything other than the transcript of the prior proceeding?

Do you intend to introduce live witnesses under... as you may, perhaps, be able to, under Oregon law?

Mr. Wolf: --Well, first of all--

Justice Stevens: Because I got the impression, from your motion to dismiss the writ as improvidently granted, that you did not.

But I don't see anything unequivocally establishing that in the record.

Mr. Wolf: --Well, we believe that we are entitled to... clearly, under the--

Justice Stevens: To--

Mr. Wolf: --statute, to--

Justice Stevens: --To put in--

Mr. Wolf: --put on the live testimony of the... of the--

Justice Stevens: --Oh, okay.

Mr. Wolf: --of the mother.

Justice Souter: But is that--

Mr. Wolf: The statute--

Justice Stevens: So, there definitely is a case before us, then.

Mr. Wolf: --Well--

Justice Souter: --Well, do you intend to--

Justice Stevens: Then there was really no basis for your motion to dismiss the writ as improvidently granted, if that's true.

Mr. Wolf: --Well, perhaps not as improvidently granted, but if there is... if the evidence comes in, under Oregon law, and we are disavowing any reliance on the--

Justice Breyer: But under--

Mr. Wolf: --eighth amendment--

Justice Breyer: --Oregon law, what is not clear is... you want to put the mother on the stand.

Mr. Wolf: --Right.

Justice Breyer: Now, do you want to go into anything at all that wasn't raised at the trial?

Mr. Wolf: Well--

Justice Breyer: I mean, that--

Mr. Wolf: --for us to go into anything that wasn't raised in the original trial, that would have to be otherwise relevant.

Justice Breyer: --That's right.

So--

Mr. Wolf: And so, for example, if--

Justice Breyer: --that's why I want to know that.

That's what's ambiguous.

Mr. Wolf: --if mom--

Justice Breyer: Look, you only get to go into something if it was not otherwise... if it is otherwise relevant; and, therefore, if you want to.

The reason they think it is relevant is because of a constitutional holding of the Oregon Supreme Court.

So, if you want to go into something, we have to decide whether it is, or is not, otherwise relevant.

If you want to ask the same thing, that's just a question of whether you have to have a transcript or a live witness.

And I don't know that that's a question that depends on their constitutional holding.

So, I want to know, Do you want to go into things that are not there in the original trial, yes or no?

Mr. Wolf: --Well, no.

Justice Breyer: Okay.

Justice Kennedy: I don't understand that answer, in light of the previous discussion about the deliberate... deliberately.

Mr. Wolf: Well, the deliberateness, Your Honor... to this--

Justice Kennedy: Did the Oregon courts take the position that, in the sentencing phase, the "deliberately" requirement must be judged just by what was then introduced in the guilt phase?

Mr. Wolf: --No, it... it's... additional evidence can be put on.

Justice Kennedy: But I thought--

Justice Scalia: --So, you told us that additional evidence on deliberation can be put in the... in the sentencing phase.

But then you're saying that you're not going to do that.

Mr. Wolf: Well, I guess it depends on the nature of... if it is to impeach the codefendant's testimony, if that's deemed to be additional--

Justice Breyer: All right.

No, I'm not saying that.

I... look, until this minute, you might have been equivocal.

You're quite right, I was leading you.

[Laughter]

Now, that doesn't mean you can't say yes or no.

You can decide right now.

So, decide.

And I'm... I will be bound by the answer, as I think we all are.

And if your answer is,

"Yes, I want to go into otherwise relevant things. "

I'd like to know that.

And if the answer is no, I want to know that, too.

Mr. Wolf: --Well--

Justice Scalia: I would pass, if I were you.

Justice Breyer: [Laughter]

Mr. Wolf: --Well, I didn't--

Justice Breyer: No, if you pass... if you pass, I will think you do.

And as long as you do, I think we have to decide whether it is, or is not, otherwise relevant.

I'm being totally open and honest with you.

[Laughter]

Mr. Wolf: --Well, as a matter of Oregon law, we think we can... we could put mom on, she could testify verbatim from her original trial, and she could be asked, or she could say,

"And I love my son. "

"Please don't kill him. "

Justice Breyer: Now, I'm not being tricky about it.

I want to know if we have to go to the words "otherwise relevant" in the Oregon statute... "otherwise relevant", particularly in respect to this question of residual doubt.

Mr. Wolf: Well, the... it... I'd ask--

Justice Breyer: I really would like an answer, if possible.

Mr. Wolf: --Well, it... the answer, Your Honor, is, I'd ask the Court to look to page 3 of our brief, where the statute is set forth, and look carefully at the way that statute is worded, which says,

"Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence. "

Justice Breyer: Right.

And they said that relevance is... of residual doubt is relevant.

And the reason that it's relevant is because the Constitution of the United States requires the jury to hear it.

Mr. Wolf: No--

Justice Breyer: That is what I am focusing on, and I want to know if you want to go into "otherwise relevant", for that reason.

Mr. Wolf: --Well, with all respect, the Oregon Supreme Court did not say residual doubt was admissible.

And residual doubt was never argued to the trial court, to the Oregon Supreme Court; and, therefore, whether or not it can come in--

Chief Justice Roberts: It said that your alibi defense, that had been rejected by the prior jury, was relevant under the eighth amendment.

Mr. Wolf: --It did say that.

Chief Justice Roberts: Okay.

Mr. Wolf: But it's relevant to this idea of deliberation.

For example, if the defendant... the codefendants have testified that the... Mr. Guzek is the mastermind of this, and that he helped plan this.

If the alibi goes to whether or not he was present for all of those events that relate to this issue--

Chief Justice Roberts: That--

Mr. Wolf: --of deliberation--

Chief Justice Roberts: --that brings up a question I have.

Particularly under the resentencing provision, it looks like the sentencing trial is going to be just a rerun of the guilt trial, because your main evidence that you want to put in is alibi evidence, "I didn't do it".

So, you're going to say, "Here's"... the mother is going to say,

"I... he was at home. "

And then, presumably, the State gets to put on all of its witnesses, saying,

"No, here are the people who saw him do it. "

and blah, blah, blah.

And so, it's just the same trial all over again.

Mr. Wolf: --It could be.

But it could be a different trial, such as we would propose in this case--

Justice Scalia: They used to have--

Mr. Wolf: --in the sense that--

Justice Scalia: --two trials.

I mean, you know, that's the whole problem here.

Your client has been tried as to whether he committed the offense, and found guilty, and now you--

Mr. Wolf: --Right.

Justice Scalia: --now you want to relitigate the same matter.

I don't--

Mr. Wolf: Not--

Justice Scalia: --I don't--

Mr. Wolf: --not that the same matter.

Justice Scalia: --And on the basis that the Constitution requires you to be able to relitigate the same matter two times in the same criminal proceeding, that doesn't seem, to me, right.

Mr. Wolf: Well, but the... but the factual... there are factual determinations to be made in the sentencing proceeding that are a continuation of the original trial.

Justice Breyer: Okay.

So, let's go to the constitutional--

Mr. Wolf: Okay.

Justice Breyer: --issue.

Now, let's imagine we have a trial.

And at the trial, we have a lot of evidence about the alibi.

Mr. Wolf: Right.

Justice Breyer: And what the State Court says,

"This is our law. "

"When a person is. "

--now go to the sentencing phase, the jury has heard it--

Mr. Wolf: Right.

Justice Breyer: --Okay?

So, they take it into account.

And, moreover, we tell them they have to consider it.

Mr. Wolf: Right.

Justice Breyer: Okay?

That's a State law.

Now, what happens when there's an appeal in the middle, and now we go back to the sentencing?

Here's what we do.

We introduce the transcripts.

And, moreover, we introduce some live witnesses to say what they said before, but nothing else.

Now, you're saying there is a constitutional right to present an additional witness on the matter that has already been litigated to go into things that were not there in the trial before.

Mr. Wolf: Well, if--

Justice Breyer: Now, my goodness, if you had real evidence of an alibi, why didn't you put it in the first time?

And if, in fact, you... it's not such good evidence, and so forth, why does the State have to have waste its time to hear some more about the alibi that you didn't put in the first time?

I mean, you know, that's what you're saying the Constitution protects.

I'm being a little skeptical.

I want to know what your answer is.

Mr. Wolf: --Well, we did put it in the first time in this case, and we don't necessarily need to rely on the eighth amendment, we believe, to put it in, if--

Justice Breyer: No, I'm agreeing with you--

Mr. Wolf: --Right.

Justice Breyer: --insofar as you have a right to put in what you've put in the first time.

Mr. Wolf: Right.

Justice Breyer: I agree with you on that one.

But you said you wanted to do something else.

You wouldn't say,

"We don't want to do something else. "

You--

Mr. Wolf: Well--

Justice Breyer: --want to do more.

Mr. Wolf: --If--

Justice Breyer: And, in the "more" part, where does the Constitution protect you?

I'm willing to, at least hypothetically, go with you on the protection for what they already heard.

Mr. Wolf: --The Constitution protects us in the sense that it allows us to rebut and respond and reply to evidence offered by the State in aggravation of a sentence of death.

And if they're offering evidence that he is... he acted deliberately, we have a right to respond to that.

We don't have to sit there with our hands tied behind our back.

Justice Ginsburg: And your--

Mr. Wolf: And--

Justice Ginsburg: --response is that he wasn't there.

It's one thing to say,

"It was intentional, but did it include deliberate? "

The other thing is to say,

"He wasn't there. "

"He didn't commit the crime in the first place. "

Those are two quite different things.

Mr. Wolf: --Well, but it's also a question of,

"How much of it was he there for? "

--as in Green.

Was he there when he... was he there for the planning stage?

Because the jury is to consider all of the evidence.

So, if he--

Justice Scalia: I thought... well, I guess it... I guess it depends on what you mean by an "alibi".

If all you mean by an "alibi" is that, for part of the offense, he was somewhere... I thought an alibi meant,

"I am not guilty, because I was not there. "

That's what I thought an alibi was--

Mr. Wolf: --I think "alibi" means,

"I was somewhere else at the time of the offense. "

But if what the jury--

Justice O'Connor: But it sounds--

Mr. Wolf: --has considered--

Justice O'Connor: --like you're trying to relitigate that question at the sentencing hearing.

And, certainly, the eighth amendment does not require that.

Mr. Wolf: --No.

Justice O'Connor: So, to the extent the Oregon Supreme Court thought that, and rested its holding on that, we ought to reject it out of hand.

Mr. Wolf: Well, but our statute requires the jury, in the sentencing phase, to make these additional factual determinations about the offense.

Justice O'Connor: Well, that's up to the court, on remand, but it ought to be straightened out that the eighth amendment does not require relitigation of where the defendant was at the time of the murder.

That was the basis for the "beyond a reasonable doubt" finding of guilt.

Mr. Wolf: Of guilt, but not necessarily of the... but if the evidence of deliberation occurred at other events in the chain of events, than the alibi is relevant to the sentencing question the jury must decide.

It's also relevant to... perhaps, to provocation.

So, there are factual determinations that the sentencing jury has to make.

Justice Ginsburg: Can you put it... make it concrete for this case?

Because I don't see that there would be... I mean, if the action is intentional, and the question was whether it was deliberate, what planning here would have gone on in some different timeframe?

Mr. Wolf: Well, there was... there was a timeframe of... there was evidence that they... the codefendants testified that the... the three of them planned to do another burglary of a different house, and then... the codefendants' timeframes are rather fuzzy, but then they went back, at some point, to the defendant's father... house to obtain weapons, and then went on to the ultimate victim's house.

So, to the extent that this deliberation includes events that occurred before the actual homicide, it's relevant to this deliberation question.

And, additionally, the--

Justice Ginsburg: I still don't... I still don't understand.

You say that there was... there had to be proof for conviction and guilt... of guilt of intentional conduct.

And this is a simple story that's told, they wanted to go to one house, too many lights on in that house; they were frustrated, they wanted to go someplace else, so they came upon the aunt and uncle of the defendant's former girlfriend.

Mr. Wolf: --Well, it was a much longer timeframe than that.

There was testimony that they went back to town, and went to the father's house and obtained weapons before they went to the house where the homicides occurred.

The other issue is that there has been subsequent evidence, since the first trial.

These codefendants have recanted certain statements.

They have recanted--

Chief Justice Roberts: You want to put that in?

Mr. Wolf: --Yes.

We believe that that's... we're entitled to do that to rebut--

Chief Justice Roberts: Any new... any new evidence relevant to alibi or degree of guilt.

Mr. Wolf: --Not to... no, I wouldn't characterize it as to alibi.

Any evidence that goes to the sentencing questions the jury must consider, to deliberation, to--

Chief Justice Roberts: And you... and you want to retain the right to put in whatever evidence is relevant on those questions.

Mr. Wolf: --Absolutely.

Chief Justice Roberts: Well, then what was all the discussion about the mother's having... then, when you go back, you can put on anything, whether it was presented before, or not, right?

Because the eighth amendment requires that, according to the Oregon Supreme Court.

Mr. Wolf: Well, whether it's required under the eighth amendment, or not, is for you to decide, obviously, but we think--

Chief Justice Roberts: Okay.

Mr. Wolf: --that it's whether or not Oregon law also requires it.

And we believe, under Oregon law, we're entitled to put this on, we're entitled to rebut this.

For example, Justice Kennedy was talking about a scenario... and, in this very case, the joint appendix, at page 92, the prosecutor in this case... this is an excerpt from the trial... was trying to get in evidence that the defendant was being manipulative.

And, at this point, the alibi evidence had been excluded.

And so, the fact that the defendant was not taking responsibility, perhaps was being deemed as manipulating people by trying to get them to come forward to say, "I wasn't there", then alibi is relevant to respond... to rebut and respond to that kind of an argument.

Justice Ginsburg: Whatever Oregon law might say, or not say, it appears that this Supreme... Oregon Supreme Court was acting under what it thought was the compulsion of the eighth amendment.

If it's wrong about that, you can make your argument about what Oregon law should be, without any eighth amendment constraint.

Mr. Wolf: Correct.

Justice Ginsburg: But it does seem that this court was operating on the assumption that the eighth amendment required it to let in this alibi and other evidence.

Mr. Wolf: And we think... we agree that the Oregon Supreme Court went farther than it needed to in this case in order to decide the issue, because, under Oregon law, mom testified--

Justice Stevens: But, you know, we're being asked to decide whether Oregon Supreme Court correctly interpreted the Federal Constitution.

And you seem to be making most of your argument to the effect,

"Well, we don't really need that holding. "

"We can prevail on Oregon law. "

Mr. Wolf: --Uh huh.

Justice Stevens: But are you going to make any argument in support of the decision made by the Oregon Supreme Court?

Mr. Wolf: No, not as long as the State of Oregon agrees that this statute operates in an evenhanded fashion.

In other words, if they get to recall witnesses who originally testified, or present transcript testimony, then we should have the same right.

Justice O'Connor: Well, this is--

Justice Stevens: Well--

Justice O'Connor: --so odd.

It... almost as though we should appoint some amicus here, Counsel, to argue in support of the merits.

Mr. Wolf: Well--

Justice O'Connor: I mean, you don't seem to be doing that.

Mr. Wolf: --Well, Your Honor, on the merits, we--

Justice O'Connor: It's very strange.

Mr. Wolf: --Well, we think that the... that the Oregon Supreme Court decision was correct in... on the... on the eighth amendment.

And we think it's... but it's... not necessarily for the reasons stated by the Oregon Supreme Court.

And the fact is that if the Oregon Supreme Court held that we have a right to... we believe that we have a right to respond to any evidence they offer on aggravation.

Justice Breyer: What about... what about... for example, the single most important feature leading juries to recommend against death, apparently, from the studies, is their residual doubt.

Every juror who hears sentencing matters directly after a trial automatically takes that into account.

Therefore, those who are resentenced and have a new jury should have the same kind of right.

Otherwise, it's cruel and unusual.

Now, I have made that argument.

You didn't make it.

But it seems to me that there are several arguments that you might make in favor of the Oregon Supreme Court's approach if, at least, you concede that it is up to Oregon to control, through its evidentiary rules, whether a matter is relevant, what form it comes in, et cetera.

Mr. Wolf: Well, we think that if... by directing that the jury consider all evidence in both phases of the trial, it must be relevant.

Why else would they instruct the jury to consider such evidence, unless it was relevant to the sentencing questions that the jury must answer?

And obviously I agree with you, Justice Breyer, that if the... if a defendant must run the gamut of having... we have to remember that the first trial was set aside because it was defective in some way.

And it would be an anomalous result for the resentencing jury to not be entitled to hear what the first jury heard when the defendant had an unconstitutional, or a defective, trial.

So--

Justice Souter: --Mr. Wolf, in view of the direction this discussion is going in, I want to go back to something that I really think we all thought we had passed but I would like to go back and get clear on.

My recollection is that you stated, in your answer to Justice Stevens, that you currently maintain that you have a right to recall the mother to the stand at the... at the sentencing proceeding.

My question, which is prompted by your motion... my question is, Is it your present intention to call the mother to the stand, or is it your present intention to use the mother's testimony, which we all... I understand to be admissible?

Are you going to call her, or not?

Mr. Wolf: --Well, we would intend to call her.

Justice Souter: You do intend to call her.

Mr. Wolf: Because we think it's important--

Justice Souter: No, I'm not asking why.

I just want to know whether you are.

And your representation to me is that you do intend to call her as a live witness as the... at the resentencing.

Mr. Wolf: --Yes.

Justice Souter: Okay.

Mr. Wolf: And I'd like to answer the reason for that, because we think the jury is entitled to see her demeanor and gauge, based on how she testifies, how believable she is.

We think it's much... we think it's better for a jury to be able to see a live witness than hear a cold transcript being read by surrogates.

And so, of course, in... as we know, in... if she were to stray from what she testified at the original trial, of course she would be impeached with,

"Well, you didn't testify about that the first time. "

But the jury, we think, as the statute clearly indicates, should allow witnesses who testified originally to be recalled, unless, for some reason, they're unavailable--

Justice Stevens: --Mr. Wolf, I--

Mr. Wolf: --in which case--

Justice Stevens: --I had misunderstood something.

There's going to be a new sentencing, but there also is going to be a new trial, is... on the--

Mr. Wolf: --No.

There--

Justice Stevens: --Why... because you mentioned, earlier, about the defect in the trial.

Mr. Wolf: --The convictions... well, the defect was in the penalty phase.

Justice Stevens: Oh, okay.

Mr. Wolf: And so, the convictions are affirmed.

The jury is going to be instructed,

"The defendant stands convicted, has been found convicted beyond a reasonable doubt. "

It is to decide these four questions, did he act deliberately?

Does he constitute a future danger?

And, to the extent the Government puts on evidence that addresses those concerns, we believe we have the right to respond to that.

And also... we also have to remember that the... that the alibi in this case was... really was offered as impeachment of the codefendants.

The codefendants are really the only evidence that links the defendant to these crimes.

And so, to the extent that... it's impeachment by contradiction.

So, while they may find that if the codefendants say,

"He did A, B, and C. "

and mom says,

"No, he was with me. "

it doesn't necessarily mean that he was with mom, only that they should disbelieve the codefendants.

And that is a... although it seems incongruous, that's standard impeachment by contradiction.

The jury is given an instruction that they're to consider it for the limited purpose of whether or not to believe the codefendants, but not necessarily as substantive evidence of alibi.

And that happens in trials every day.

So, we don't think it's that unusual for the... if the evidence relates to the sentencing questions the jury must consider, then it should come in.

So, the other point that I think is important in this case is that the... you know, the... it's really not unlike this... cases that this Court has held, Sumner versus Shuman, and Skipper.

If the Government puts on evidence--

I see my time is up.

Rebuttal of Mary H. Williams

Chief Justice Roberts: Thank you, Counsel.

Ms. Williams, you have 2 minutes remaining.

Justice Scalia: General Williams, I have one question.

I'm not sure it goes to our eighth amendment question before us, but I honestly don't understand what your statute is all about.

It says that after having been convicted of aggravated murder... aggravated murder... the sentencing jury shall be presented with the following questions.

Number one, whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased, or another, would result.

Don't you have to find that in order to convict of aggravated murder?

Mr. Williams: Justice Scalia, we copied from text those... on those special issues.

And so, in the guilt phase, what you have to establish is that the defendant acted intentionally.

And that's what's required as far as the constitutional state of mind.

And the deliberateness question is sort of an intentional plus.

Justice Scalia: Plus, okay.

Mr. Williams: It's from an additional--

Justice Scalia: --I gotcha.

Mr. Williams: --finding, beyond intentional, that the State has to then establish in the penalty phase.

Two quick points.

First, on how this evidence was offered.

It was not offered as impeachment evidence.

It was not offered under any State statute.

If you look in the joint appendix, the second volume, at page 94 is the notice of intent to rely on evidence of alibi as mitigating evidence.

And then there's an accompanying memo that follows.

And, also, at page 88 of the joint appendix, there's a colloquy between defense counsel and the trial court, where defense counsel says, "Your Honor"... and made it very clear that alibi is being offered as mitigation.

It goes to the circumstances of the crime.

It's mitigating evidence that someone is not there.

And, later, circumstances of the offense is part of the fourth question, which, in Oregon, is the mitigation question.

If the--

Justice Breyer: Is the 2:16 a.m. alarm clock in the original trial, or not?

Mr. Williams: --The mother's testimony about the time from--

Justice Breyer: Yes.

Mr. Williams: --2:10 a.m. to 4:20 is in the guilt phase of the trial.

And again from the colloquy,

"If you're not there, that is certainly mitigating. "

And let me just mention, in terms of the timing of the alibi evidence, the grandfather's alibi covered from 9 o'clock at night until 2 o'clock in the morning; the mother's, from 2:10 in the morning til 4:20.

The crimes occurred in the early morning hours.

And so, there isn't any way to parse this out and say that the alibi testimony might have been relevant, in some small piece, on deliberateness.

To the extent that the State puts on additional evidence to establish deliberateness, of course defendant can respond to that additional evidence, but the State doesn't make the question of whether the defendant was there wide open again in the penalty phase.

Chief Justice Roberts: Thank you, Ms. Williams. The case is submitted.

Attribution:

The Oyez Project

Featured:

Brown v. Sanders - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Brown v. Sanders

Media File:

04-980_20051011-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jane N. Kirkland

Chief Justice Roberts: We'll hear argument next in Brown vs. Sanders.

Ms. Kirkland, proceed, please.

Mr. Kirkland: Thank you.

Mr. Chief Justice, and may it please the Court--

Whether a capital sentencing statute is categorized as "weighing" or "nonweighing" determines how courts assess the impact of an invalid death eligibility factor on a jury's sentence selection.

To decide whether a statute is "weighing" or "nonweighing", we look to the function, if any, of an eligibility factor in the statute's sentence selection process.

In a "weighing" scheme, as this Court first stated in Zant, a jury is specifically instructed to weigh the statutory eligibility factors, along with any mitigation, to choose the sentence.

In a "nonweighing" scheme, the eligibility factors have no role above the role of "all other sentencing evidence".

California is a "nonweighing" State, for two primary reasons.

First, the only reference whatsoever to 11 open ended sentencing factors is in its sentencing factor (a), but that reference has no significance, because, under the language of the statute and the holdings of the California Supreme Court, factor (a) means the jury is to consider, if it's relevant, the facts and circumstances of the offenses, including the facts and circumstances that underlie the eligibility factors.

Justice Souter: Isn't the difficulty with that argument that that, at least, is not the way the jury was instructed in this case?

As I understand it, the... and I don't have it in front of me, but I looked when I was going through the briefs... the jury was instructed to consider the special circumstance, or stances, as such.

They were not instructed that,

"You will simply consider the facts that underlay whatever conclusion you drew at the... at the earliest stage about special circumstances. "

They are instructed to consider special circumstances.

Mr. Kirkland: They're instructed in the language of the statute.

And in that sentencing factor (a), there is a reference to those special circumstances.

Justice Souter: As such.

I mean--

Mr. Kirkland: So that--

Justice Souter: --it calls them special circumstances, right?

Mr. Kirkland: --Correct.

Justice Souter: Yeah.

Mr. Kirkland: But it's not reasonably likely that the jury would have understood that to mean that they should accord any special weight to the title of special circumstances, apart from the overall umbrella of the--

Justice Souter: Well--

Mr. Kirkland: --special circumstances that--

Justice Souter: --well, that may be an argument for the way we have looked at special circumstances, is as something... as factors that do carry a special weight, but I don't see any reason to differentiate the instruction to consider special circumstances here from the instructions in law to consider eligibility factors in other States, which we have called "weighing" States.

Mr. Kirkland: --Well, in "weighing" States, the eligibility factors form the primary aggravation for the jury to consider at sentencing.

In California, the reference to the eligibility factors is that one subpart of one of otherwise completely distinguished from eligibility factors--

Justice Souter: Well, I--

Mr. Kirkland: --sentencing factors--

Justice Souter: --I know what you're saying, because, in California, you've got a long list of other things, and you're entirely right.

But, as I understand it, in the States that we have classified as "weighing" States, the juries were not... were not strictly limited, on the aggravating side, to consider only the special circumstances or the aggravating factors, as they have been previously defined; they could consider other things.

And that's the case here.

So, I don't see how we can draw a categorical distinction between California's situation and that of States we've called "weighing" States.

Mr. Kirkland: --There's two differences between that.

In any of those "weighing" States... well, in Mississippi and Florida, for example... the eligibility or aggravating factors are... are the sole aggravation at sentencing, and--

Justice Souter: I thought in--

Mr. Kirkland: --that through--

Justice Souter: --I thought in Mississippi they could take into consideration other facts.

Mr. Kirkland: --Well, they couldn't at the time of Clemons and Stringer.

Apparently, in the interim, in the 1990s, as is discussed in our brief, they... Mississippi changed the interpretation of its statute, so it now has, sort of, an overarching circumstances of the crime aggravation consideration in its sentencing.

But that was not the time as of Clemons.

And, in the footnote in Clemons, which... this Court referred to the statute of Mississippi... it was clear that, at least at the time of Clemons, the eligibility factors were the sole aggravation.

But the--

Justice Ginsburg: So, you would say Clemons should come out the other way, given the current state of the Mississippi statute?

Mr. Kirkland: --It depends how else the aggravating factors are, or what kind of a role the aggravating factors play now under the Mississippi statute.

If the role is diminimus, then it's probably not a "weighing" State.

But the "weighing" States... in the "weighing" States, the eligibility factors are the lynchpin of the sentencing decision.

Justice Kennedy: Well, I suppose the reason behind this distinction... and it's, in a sense, artificial, because we made it up... I suppose the reason is that, in the "weighing" State, the concern is that if there is an ineligible... or an invalid factor in the eligibility determination, it carries over with the degree of force and weight... it's almost... it's a presumption that the jury is liable to treat it... or, at least the jury is liable to treat it as such.

And I see that same aspect to this case, when the instructions refers... you indicated in your colloquy with Justice Souter that the instructions specifically say

"any special... any special circumstance which has been found. "

Mr. Kirkland: It's... that is a--

Justice Kennedy: Am I right that the special--

Mr. Kirkland: --That's what it says.

It's a... it's a phrase, just as it's in the California statute, that directs the jury, as a sentencing factor, to consider the facts and circumstances of the crime along with any special circumstances found to be true.

And this Court's made it clear, in Stringer and in other cases, that how the State court sees its statutory language ought to be dispositive.

And California has repeatedly held... and we submit it's not reasonably likely a jury would interpret it any other way... that that means that the jury is to consider the facts and circumstances of the case, all of those facts and circumstances, including those that underlie the special circumstances.

That--

Justice Breyer: See, I'm not... this is a fairly complex area.

Mr. Kirkland: --I'd agree.

Justice Breyer: And, as I understand, at this moment... and I hope you'll correct me if I'm wrong... in a "weighing" State, we look at the aggravating side, and there seem, let's say, to be three factors that you could take into account and weigh them against all the mitigation.

I'm imagining that.

And you might have thought, if factor one turns out to be invalid, the reason that that's a big mistake, because the jury would have weighed something against all that mitigating evidence that it shouldn't have.

And what's something?

There would be a lot of evidence on it, so it took it... evidence into account it shouldn't have.

So, I might have thought that was so.

But when I read the cases, that isn't so, because I think it's... in Clemons the evidence would have come in anyway.

So, if that isn't so, what could be wrong with this problem in the "weighing" State?

And the answer, I guess, has to be that the prosecutor or the State said,

"Jury, you look to these three things. "

with a tone of voice that really made them important.

And the jury then weighed one and two and three.

It didn't have anything to do with the evidence.

Well, if that's the problem, California seems to have that problem, because one of the things it says to weigh is, "Weigh circumstances of the crime".

And that means that's not everything.

That's not the history of this defendant.

And so, the problem that existed in Clemons and in Stringer and in Zant that led to constitutional error seems to be there in California's case, too.

Now, I probably have made five mistakes in my little recitation here, and I'd ask you to point them out.

[Laughter]

Mr. Kirkland: In California... well, first of all, if this is new jurisprudence to you, or unfamiliar, the critical difference is that most States, and most of this Court's jurisprudence, uses the term "aggravating factor" and "eligibility factor" interchangeably, because in most States, and particularly in the "weighing" States, "aggravating factor" is the eligibility factor that makes the defendant eligible for death, but it's also the sole, or primary, factor that the jury is to take into consideration on the side militating in favor of death.

In California, we have "eligibility factors", which are the special circumstances, and those happen at the guilt phase of the trial.

And then we have 11 factors that are totally different from the special circumstances or--

Justice Ginsburg: They're not totally different, because one of them is special circumstances.

Mr. Kirkland: --Well, one part of one of them.

In factor (a), there is one reference to special circumstances, and that's--

Justice Ginsburg: And it distinguishes those from circumstances of the crime, and then it... then it says, "and special circumstances".

So, it seems to me that "special circumstances" is a discrete factor, different from "circumstances of the crime".

Mr. Kirkland: --The way that California has interpreted that... in fact, there is a case that's cited in these briefs, People versus Cain, and Morris... which is on our merits brief, in page 27, and in our reply brief, on page 6... where a defendant in California argued that that reference to "special circumstances" ought to be excised from the direction to the jury of what they're to consider at sentencing.

And in rejecting the idea that that should be excised, the California Supreme Court said,

"An instruction not to consider the special circumstances would defeat the manifest purpose of factor (a) to inform jurors that they should consider, as one factor, the totality of the circumstances involved in the criminal episode that's on trial. "

Justice Scalia: It is, indeed, very complicated, Ms. Kirkland.

And, I forget, which provision of the Constitution is it that contains this complexity?

[Laughter]

Mr. Kirkland: All of this jurisprudence is based on the eighth amendment requirement--

Justice Scalia: That says?

Mr. Kirkland: --that says that,

"A valid death penalty statute must provide sufficient narrowing-- "

Justice Scalia: Is that what the eighth amendment says?

Mr. Kirkland: --That's the way the eighth amendment has been interpreted in its application of cruel and unusual--

Justice Scalia: Cruel and unusual punishments are forbidden.

And this is where that comes from.

Justice Stevens: And may I ask you a question about the California statute, if I may, please?

In subsection (a) of 190.3, it says that the trier of fact "shall" take into account any of the following factors, if relevant.

And one of those is the existence of any special circumstance found to be true, pursuant to 190.1.

And under 190.1, one of the special circumstances is number 14,

"heinous, atrocious, or cruel. "

Does that mean the statute required in the weighing process... that the jury take into account that factor?

And is it not true that factor was held invalid?

Mr. Kirkland: --That factor was held invalid, but what--

Justice Stevens: So, they were... they were directed to take into... they "shall" take into account an invalid factor.

Mr. Kirkland: --Well, yes.

"Shall"... as interpreted in California versus Brown by this Court and in the California Supreme Court jurisprudence, "shall" is a directive, it's not... it's not... California does not have a mandatory statute.

In fact, none of these factors are labeled as either aggravating or mitigating.

It's possible--

Justice Stevens: No, but the... number 14 clearly is not mitigating.

Mr. Kirkland: --No.

But whether or not a crime is heinous, atrocious, and cruel is part of... apart from its labeling as a special circumstance, that's certainly a valid consideration for the jury to be thinking about when it's engaged in its normative process of choosing sentencing.

The only thing that's different under the California statute... when

"heinous, atrocious, and cruel. "

as a special circumstance, is out of the mix... is whether it can be labeled

"heinous, atrocious, and cruel. "

and whether that label has any independent weight.

But all of the evidence and the--

Justice Stevens: All of the evidence--

Mr. Kirkland: --description of the crime--

Justice Stevens: --Would you agree, though, that, if you had a separate sentencing jury, one that did not have all the evidence, and that jury was instructed that at the guilt phase a determination has been... that has... it has been found that the crime was especially heinous, atrocious, and so forth, that that finding might tip the scales in favor of imposing the death penalty?

Mr. Kirkland: --I don't think so, Your Honor, since that--

Justice Stevens: Because the underlying facts are already before the jury, and they can make their own judgment about them.

Mr. Kirkland: --Right.

And that instruction specifically directs the jury to all the facts and circumstances of the crime; and so, not only the characteristics of all those facts, but it would even be appropriate for the prosecutor to refer to the crime as "heinous and atrocious".

Justice Stevens: See, one of the... one of the things that concerns me about this case... unlike Zant, most of the cases in which we have found the label of aggravating... immaterial... or findings like prior criminal histories... robbery, or something like... but whenever a pejorative factor of this kind has been found, we've generally found it did tilt the scales a little bit on the... on the... in favor of death.

Clemons and the other were cases of this kind of aggravating--

Mr. Kirkland: Well, but--

Justice Stevens: --circumstance.

Mr. Kirkland: --but Clemons is a "weighing" State, where those--

Justice Stevens: I understand.

Mr. Kirkland: --aggravating or eligibility factors are at the core of the sentencing decision.

And that's not the case in California.

They're... these are not the--

Justice Stevens: Are there any--

Mr. Kirkland: --the lynchpin of it.

Justice Stevens: --cases in which we have held a fact of... a finding of the fact of this kind was irrelevant, was harmless?

I think the cases are all the other--

Mr. Kirkland: Well, in "weighing" States, that's true, but--

Justice O'Connor: Ms. Kirkland, assume for a moment... I know you don't agree, but assume that the court, or a majority of it, were to hold that California appears to be a "weighing" State.

This case arose before the enactment of the Federal law that we call AEDPA.

So, I guess pre AEDPA law governs.

And we would then have to consider... what +/?

whether this is harmless error?

But the third question that you raised was... apparently did not incorporate any consideration of the Brecht standard.

Is that what would be applied if we had to address the consequence here, of holding it to be a "weighing" State?

Mr. Kirkland: --No.

We believe the Brecht standard would not apply--

Justice O'Connor: Why?

Mr. Kirkland: --in this instance, and that's because what happens--

Justice O'Connor: Wasn't that the pre AEDPA standard?

Mr. Kirkland: --Yes, that's the pre AEDPA standard, and--

Justice O'Connor: So, why wouldn't that apply?

Mr. Kirkland: --Because, in this... if California were a "weighing" State... and therefore, the Clemons ruled applied... in the first instance, the State court has the opportunity to cure the error.

And if the error is cured by reweighing... appellate court reweighing the evidence, or appellate court harmless error analysis, then there is no error to be assessed under the Brecht standard.

And when it comes to the Federal court on habeas corpus, the error has been cured.

And so, Brecht does not apply.

Justice Souter: In this case--

Justice Kennedy: --I have one background question.

And maybe I missed something.

Number 14,

"where it was especially heinous, atrocious, and cruel. "

--taken alone, that would be vague.

But I thought that in Profitt we said that if it were... if there were a gloss given by the courts in interpreting that standard so that it was made more specific, evidenced in a pitiless attitude, pitiless crime, that then it was valid.

Has a Federal court, or have we said, that this provision is unconstitutional?

Or do we just assume that in this case?

Mr. Kirkland: Do we--

Justice Kennedy: Or am I missing--

Mr. Kirkland: --assume that the

"heinous, atrocious, and cruel. "

special circumstance in this case was invalid?

Justice Kennedy: --Yes.

Mr. Kirkland: Yes, it... we assume that, because, in this case, the California Supreme Court held that to be invalid.

In Profitt... and that's Florida statute--

Justice Kennedy: Invalid as a matter of Federal law?

Mr. Kirkland: --It's invalid as a matter of State law.

Justice Kennedy: Okay.

Mr. Kirkland: So, the... California's holding on

"heinous, atrocious, and cruel. "

in its Engert case, which is cited in these briefs, predates this Court's holding in Maynard that

"heinous, atrocious, and cruel. "

was invalid under the eighth amendment.

Justice Kennedy: So, now we have an extra layer of complexity, because something that's been held unconstitutional under State law is said to skew the weighing, if it is weighing, as a matter of Federal law.

Mr. Kirkland: Yes, it can be looked at--

Justice Kennedy: All right.

Mr. Kirkland: --that way.

But the other thing that I wanted to say about your question about Profitt is that Florida, like some of the other States, after Maynard v. Cartwright declared that

"heinous, atrocious, and cruel. "

was an inappropriate eligibility circumstance under the eighth amendment, some States have fashioned either instructions or changes in their law to tailor their "heinous circumstance" to meet the concerns that are expressed in Profitt.

But California has never done that, because--

Justice Kennedy: Was it--

Mr. Kirkland: --it held it invalid under California law--

Justice Kennedy: --was it this case in which the Supreme Court of California made the definitive interpretation--

Mr. Kirkland: --No.

Justice Kennedy: --that this is... what was--

Mr. Kirkland: That case is Engert, which is--

Justice Kennedy: --Engert.

I can find it, thank you.

Mr. Kirkland: --It's in--

Justice Scalia: What did... what did the California Supreme Court hold?

Did it hold that considering the

"heinous, atrocious, or cruel. "

nature of the crime as part of the totality of the balancing was improper, or did it hold that that language is insufficient to form one of the narrowing functions that the aggravating circumstances--

Mr. Kirkland: --The Engert case specifically held that the

"heinous, atrocious, and cruel. "

circumstance was only invalid as an eligibility determinant, because it failed to adequately narrow.

So, it specifically--

Justice Scalia: --So, if I think something is

"heinous, atrocious, or cruel. "

I can use that in the balancing, even though I can't use it as one of the narrowing factors.

Mr. Kirkland: --Correct.

And in the Engert case itself, the California Supreme Court indicated that

"heinous, atrocious, and cruel. "

would be a valid sentencing consideration; it just wasn't a valid narrowing consideration.

Justice Kennedy: Well, of course, this goes to a question, really, for the respondent.

It helps... there is a paradox here.

To the extent that a State attempts to guide and to limit what the jury can consider in the selection phase, it's held to a higher standard.

There is... there is certainly a paradox there.

Mr. Kirkland: Yes.

Chief Justice Roberts: Counsel, I was confused by your answer to Justice O'Connor's question.

Do you think the... we should review the California Supreme Court's harmless error analysis, or should we undertake a Brecht analysis?

Mr. Kirkland: In this case--

Chief Justice Roberts: Assuming you'd... we'd--

Mr. Kirkland: --Yeah.

Assuming--

Chief Justice Roberts: --you lose on the first question.

Mr. Kirkland: --California is a "weighing" State--

Chief Justice Roberts: Yeah.

Mr. Kirkland: --then the first step is for this Court... as the ninth circuit did, is to look at whether California performed a proper Clemons review, which is that the appellate court looks to see whether there is a principled and complete harmless error review.

The ninth circuit held that there was no such principled and complete review, because--

Chief Justice Roberts: I would have thought that that might have collapsed into the Brecht analysis.

Mr. Kirkland: --It could have, but it... the court did it in two steps, and we believe it's because the ninth circuit recognized that it couldn't get to Brecht unless it found that California's attempt to cure the error under Clemons failed.

Justice Ginsburg: In other words, you said that the error was harmless under Chapman, the higher standard--

Mr. Kirkland: Yes.

Justice Ginsburg: --and that the California court so ruled.

And if that ruling is correct, then you would never get to any Brecht standard; the Federal court would have to say California applied the proper harmless error analysis, and that's the end of the case.

Mr. Kirkland: That's correct.

Justice Ginsburg: So the... so the second question, once we get past weighing, is whether California, in fact, did do what Chapman said.

Is that right?

Mr. Kirkland: That's correct, that they not only have to have applied the appropriate standards... that is, the "beyond a reasonable doubt" standard, which is the same as California's "reasonable possibility" standard... they not only have cried... applied the correct standard, but they have to have done so in a principled and complete way so the reviewing court can make sure that they've actually cured the error.

Justice Ginsburg: Well, the problem--

Mr. Kirkland: And--

Justice Ginsburg: --here is that the California Supreme Court decision is rather skimpy once you get to harmless error.

Mr. Kirkland: --Well, we think that their analysis of the error was fairly complete.

They refer to the critical aspect of it.

They talked about the standard that should be applied.

And they made clear, as they have... consistent with their holdings, that because all the other evidence that related to the burglary, felony murder, special circumstance, or eligibility factor and the

"heinous, atrocious, and cruel. "

eligibility factor, since all of that evidence was properly before the jury and the prosecutor, and nothing about the arguments or the instructions emphasized the independent weight of those eligibility factors in the sentencing, that, therefore, there was no harm.

Justice Souter: --You're--

Justice Ginsburg: What was... the argument was that, in California, the burden of proof is on--

Justice Souter: --Right.

Justice Ginsburg: --the defendant, instead of on the prosecutor for the harmless error inquiry?

Mr. Kirkland: We think that the burden of proof argument is illusory here, that the way that these things are analyzed, just as they were in this very case, is that it's the court who performs the analysis, and there's no discussion of which side has to prove what.

It's the court who determines whether... what standard's to be applied and whether that standard is met by all of the facts and circumstances--

Justice Kennedy: Maybe--

Mr. Kirkland: --of the case.

Justice Kennedy: --so, in this... or, weren't there previous California cases... or, again, correct me if I'm wrong... where California says the reasonable possibility test requires the defendant to establish that the error was prejudicial?

I thought that was the California law.

Or am I wrong?

Mr. Kirkland: Well, the California... the California Supreme Court has said that "reasonable possibility" and "beyond a reasonable doubt" are the same thing.

And those burden cases are in a completely different context than this.

In this case, in this kind of circumstance, when we're talking about capital case sentencing, it's the court who does the analysis.

There's no discussion of burden, and there's--

Justice Souter: Well, but don't--

Mr. Kirkland: --no placement of burden.

Justice Souter: --don't we assume that the court follows California law on the... on the burden?

And isn't it clear that, under California law, the burden is on the defendant?

Mr. Kirkland: No.

In this case, the court... there is no discussion of burden.

There--

Justice Souter: I know there is no discussion of burden.

But when there is no discussion of burden, isn't the reasonable assumption for us to make, as a reviewing Court, the assumption that the California Supreme Court followed its own law, and its own law is that the burden is on the defendant?

Mr. Kirkland: --Well, I don't think it's fair to assume that in this instance, since burden didn't play any role in this, that there was... neither side had any burden.

The court itself performed the analysis.

If the court had--

Justice Stevens: --May I ask you one quick question, if you can comment... the statute expressly says,

"They shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. "

How do you respond to that?

Why is it not a "weighing" State when it says that?

Mr. Kirkland: --Because the word "weigh" isn't the talisman for the process that the jury goes through.

1977 law, which everybody agreed was a 1978 capital sentencing statute, that that changed this.

But the California Supreme Court made clear, in its Frierson decision, that, as far as California is concerned, the process... the mental process that the jury goes through under either statute is the same, that "weigh", "consider", "balance", so on, none has the talismanic thing.

It's just a metaphorical description for the jury's normative evaluation.

So, the term "weigh" is not dispositive.

Justice Stevens: And the term "concluding that it does outweigh" is something different from "weighing".

Mr. Kirkland: No, it's the same process.

And in California, too, a critical thing is that that "aggravating circumstances" means the sentencing factors that militate in favor of death; it doesn't mean that "eligibility circumstance".

It refers to those sentencing factors.

Justice Stevens: Well, I think--

Mr. Kirkland: I'd like to reserve the rest of my time for rebuttal.

Argument of Nina Rivkind

Chief Justice Roberts: Thank you, Ms. Kirkland.

Ms. Rivkind.

Mr. Rivkind: Mr. Chief Justice, and may it please the Court--

I would like to focus on the observation that we need to look at what the jury was instructed, because I think that will clarify for the Court that California's 1978 law is, indeed, a "weighing" statute under the established law of this Court.

In Mr. Sanders' case, the jury was instructed in the language of section 190.3, and this language gave the jury a very explicit roadmap as to how it was to undertake its sentence selection in this case.

Section 190.3 assigns a specific role to the aggravating factors.

It tells a jury that,

"In determining the penalty, you shall consider, take into account, and be guided by the listed enumerated factors. "

The special circumstances, as the questions from the Court have noted, are specifically included.

Factor (a) has two independent components, and one is the existence of any "special circumstance" finding.

As Justice Stevens noted, this could only be considered aggravating.

It is, after all, the reason that California has said that this case moved from being an ordinary murder to being one that was worthy of either death or life without parole.

Justice Kennedy: But it's not... it's prefaced by circumstances of the crime.

Mr. Rivkind: I--

Justice Kennedy: And this State, and other States, can determine,

"Oh, the victim was in fear for a long time, or was tortured. "

It seems very odd that a State, which is a so called "nonweighing" State, could allow all of this same evidence to come in, but California, which tries to get some structure, is suddenly held to a higher standard.

That's paradoxical.

Mr. Rivkind: --Well, no, I think it's not, and I think it's very consistent with what we see in Mississippi.

In California, factor (a) contains two independent components.

One is the "circumstances of the crime", and one is the "special circumstances".

The California Supreme Court, both before it affirmed Mr. Sanders' death sentence and after... before, in a case, People versus Hamilton, and after, in People versus Benson... in the context of assessing invalid special circumstances, said that it presumes the jury follows its instructions, and considers the special circumstances independently of their underlying facts.

Justice Kennedy: Of course, it's... it's invalid only because it's too vague for eligibility.

It's not invalid because it's too vague for selection.

Mr. Rivkind: I don't think that distinction holds up.

And I think that we see that both in Clemons and in Stringer.

And this takes us to a misunderstanding of the Mississippi statute.

In Mississippi, the statute has not changed since the time of Clemons, except for one provision, and that is the addition of another category of capital murder.

In Mississippi, death eligibility is decided by the definition of 97-3-19.

And the State lists, I think, now nine... I think it was eight at the time of Clemons... categories of capital murder.

The defendant then goes to a penalty phase, and the statute sets forth aggravating circumstances in Mississippi's statute, section 99-19-101.

There is a correlation between many... at the time of Clemons, all of the categories of capital murder and the aggravating circumstances, much as there is in Louisiana.

However, there are two additional aggravating factors at the sentence selection phase, and those are the

"heinous, atrocious, and cruel. "

aggravator, which, in Mississippi, is only a selection factor, and whether the defendant had a prior conviction.

And so, in this sense, we... the Mississippi statute is very comparable to California.

And it goes further, because, in Mississippi... in Clemons' case, if you look at the joint appendix, at 24, and also in Stringer's case, at joint appendix 10... the juries were instructed, pursuant to the Mississippi standard capital sentencing instructions... the very first opening paragraph tells the juries that,

"In determining penalty, you must objectively consider the detailed circumstances of the crime. "

And I think this instruction helps explain the court's footnote 5 in Clemons, which I think is very important in terms of understanding why this whole focus on circumstances of the crime is not relevant to the distinction between "weighing" and "nonweighing".

Chief Justice Roberts: Why is--

Justice Scalia: Ms. Rivkind, I really don't understand what harm is done here.

I can understand you're saying that there is harm done when a statute says,

"The jury shall weigh the aggravating circumstances. "

which are... have been specified and which are narrowing circumstances; there are only five named in the statute...

"shall weigh the aggravating circumstances found to be true against the mitigating. "

and it turns out that one of those five aggravating circumstances is unconstitutional.

Okay?

Then you have the jury weighing something that it shouldn't have weighed, because that aggravating circumstance was bad.

I don't see why any harm is done where you have a statute that lists aggravating factors, one of which is

"heinous, atrocious, or cruel. "

and that is later found invalid by the State supreme court.

But then, in the weighing process, the jury is told,

"Don't just weigh aggravating factors, weigh all of the circumstances of the crime. "

Now, it seems to me that the same jury that erroneously found, as one of the aggravating factors,

"heinous, atrocious, and cruel. "

would also have found that

"heinousness, atrociousness, and cruelty. "

to be one of the circumstances to be weighed.

So, what harm is done?

Mr. Rivkind: I think the harm is... there is harm.

I think the fact that the jury considers the circumstances of the crime, in California, as an aggravating factor.

It may go to prejudice.

Certainly, the nature of a statute will inform a court's prejudice analysis.

But Mr. Sanders went into the penalty phase essentially with four weights on death's side of the scale, based solely on the special circumstances, and two of those weights should not have been there.

And his jury was given a very--

Chief Justice Roberts: --But the... but the evidence supporting them was perfectly admissible.

So, the jury could consider that evidence and come to the same conclusion; it's just the label that seems to be giving you the most concern.

Mr. Rivkind: --I have two responses, Your Honor.

First, the rule... the distinction between "weighing" and "nonweighing" is not an evidentiary rule.

It is a rule about the statutory labels that a State gives to the factors that the jury puts on death's side of the scale.

Even in a "nonweighing" State, as Zant made clear, if an... where a harmless error review need not be done, because the court has concluded there will be... the aggravating circumstances have an inconsequential impact, because the jury is not required to consider them in the selection decision... even there, if an invalid aggravating circumstance permits the introduction of evidence that would otherwise have been inadmissible, we have error.

And that's the conclusion that the--

Justice Souter: Okay, but aren't we in, sort of, the converse situation here?

There isn't any question about the admissibility of evidence that shouldn't otherwise have come in.

I thought your argument here is, the error proceeds from the fact that, by using this label... by referring to the circumstance as a "special circumstance", having been found at the eligibility stage... that circumstance, and all the evidence that might support it, is given extra weight, and that's where the thumb on the scale comes.

Isn't that your point here?

Mr. Rivkind: --My argument is that the "special circumstance" finding, itself, is the invalid aggravating factor on death's side of the scale.

That is what the California Supreme Court--

Justice Souter: But that's what I thought I was trying to say.

I mean, am I getting it wrong?

Because this is the--

Mr. Rivkind: --No.

Justice Souter: --time to correct me, if I am.

Mr. Rivkind: No, the... the jury could consider the facts of the crime, as in Mississippi.

The jury is told to consider all the crime facts when deciding the penalty.

And in California the jury could have considered the manner of the killing and who was killed and how the crime proceeded.

The harm to Mr. Sanders was that the jury was told that it had a process that was mandated for reaching its decision, and that process required the jury to put two special circumstances on death's side of the scale, that should not have been there, and then required the jury to reach the penalty decision by balancing.

Justice Ginsburg: Are you saying... because this can get pretty complex... simply, that because special circumstances are a discreet category, that, in effect, what went... what the court is instructing is double counting that factor?

It's a factor in all the circumstances how the... how the crime was committed is a factor of all circumstances; and then, in addition, it is a special circumstance.

So it is, in effect, counted twice.

Is that the essence of your argument?

Mr. Rivkind: I think it's more than that, because I... I think if... the harm is--

Justice Scalia: I hope so.

[Laughter]

Mr. Rivkind: --It is more than that, because we have to think of how the jury is understanding this.

To ordinary citizens who are called to stand in ultimate judgment--

Chief Justice Roberts: Well, didn't the California Supreme Court answer that in--

Mr. Rivkind: --Yes.

Chief Justice Roberts: --its Bacigalupo--

Mr. Rivkind: No.

Chief Justice Roberts: --decision, where, as I read it, it says juries don't give special circumstances any extra weight in considering all the variety of factors listed in the statute?

Mr. Rivkind: I don't read Bacigalupo as saying that.

Bacigalupo did not deal with the question of invalid special circumstances being weighed at penalty selection.

I think the more appropriate authority of the California Supreme Court are its Hamilton and Benson decisions, wherein, addressing exactly the situation, a claim that invalid special circumstances tainted the death sentence, the court said, specifically,

"We presume the jury weighs those special circumstances, apart from the-- "

Justice Breyer: The word "special circumstances" is ambiguous, because it might refer to something in the world, in which case it's about evidence, or it might refer to something in the law, in which case it's a statement by a prosecutor to look at some of this evidence and give it some special weight.

Now, that what's confusing me throughout.

As I understood this area, to go back to what Justice Scalia was saying... no, wait, just... I'll back up to try to get you to correct my misunderstanding... Zant is the key, because Zant says,

"Judge, if you have a "nonweighing" State. "

--that is, everything's relevant but the kitchen sink...

"the fact that the prosecutor made a mistake at the eligibility stage by including something he shouldn't is beside the point. "

Is that right?

Mr. Rivkind: --That is correct.

Justice Breyer: Fine.

Then we look at Stringer and Clemons, and they're making exceptions to Zant.

And they're making exceptions for "weighing" States.

So, even if the evidence in all three cases is identical and it made no difference to the evidence... that is, to what really happened in the world... still, says Clemons and Stringer... still, you're not home free yet, State.

Rather, you have to back up and do harmless error analysis.

So, the answer, I think, to Justice Scalia, if I understand it, is, Justice Scalia, you may be right, maybe all this is harmless, but we don't have before us the product of harmless error analysis, because you didn't grant cert on it, among other reasons.

Now, if I'm right so far, and if we want to straighten all this out, why not go back and say all three cases are wrong?

What you really ought to do is say,

"Court, always conduct harmless error analysis. "

"Conduct it whether you're in "nonweighing", conduct it whether you're in "weighing", we'll simplify. "

Now, what would be so terrible about that?

Mr. Rivkind: Your Honor, if I were able to write on a clean slate, that is the rule I would propose.

I think that if you... the whole idea of Zant was carving out an exception from conducting harmless error review, and the court was assured that because the aggravating circumstance, which was only a death eligibility factor, fell away at the selection stage, there was really... it was... the impact of that aggravating circumstance was likely to be inconsequential, as the Georgia Supreme Court found, and as this Court found in Zant.

The simple approach would be to apply harmless error review, no matter what the structure of the statute--

Justice Breyer: Then we would not have this crossword puzzle, which probably only five people in the United States understand, and the worst thing that would happen would be, you'd always conduct harmless error analysis, and thus, if Justice Scalia is right about it, you would lose, and if... because it would be harmless... and if he's wrong about it, you'd win.

Justice Scalia: Assuming--

Mr. Rivkind: --I think... I--

Justice Scalia: --assuming the district court does the... the district court in the ninth circuit does the harmless error analysis correctly.

Mr. Rivkind: --And--

[Laughter]

And I--

Justice Ginsburg: But isn't it the California Supreme Court that has to do the harmless error, in the first instance?

And here, this is puzzling about this case.

Defendant said, at trial, to his lawyer,

"Don't argue any mitigators. "

"I'd just as soon die as spend my life in prison. "

So, no mitigators were argued.

So then, even if you have a wrong aggravator, you have other aggravators that are right, and there's nothing to weigh against those correct aggregators.

So, what mitigation is there to weigh against the valid aggravators?

Mr. Rivkind: --Your Honor, I think we first need to distinguish between the lack of a formal mitigation case and the absence of mitigating factors.

In this case, in reviewing a different claim, the California Supreme Court... and I refer the Court to joint appendix 108, I believe is the cite... the California Supreme Court found that Mr. Sanders' decision to refuse to take part in the penalty phase did not necessarily make a death sentence more likely, and it also found that the jury could have found mitigating factors from the guilt phase evidence.

Indeed, the jury was instructed to consider the evidence from all parts of the trial.

Justice Ginsburg: Well, what were those?

I see that sentence.

The jury--

Mr. Rivkind: So, I think there was a--

Justice Ginsburg: --Yes, but what were the mitigating factors from the evidence presented at the guilt phase?

Mr. Rivkind: --The main mitigating evidence was a powerful mitigating factor which went to the personal culpability of Mr. Sanders, and that was that the prosecutor, in his closing guilt phase argument, told the jury,

"We don't know whether Mr. Sanders was the actual killer or whether his codefendant, Mr. Cebreros, was. "

And there was evidence from the surviving victim that there was a conversation between the two assailants, before the surviving victim was struck, in which one of the men said he wanted to leave the apartment.

And, again, there was no evidence as to which defendant this was.

This Court, in Green versus Georgia, has realized that whether someone is an actual killer or an accomplice is of critical importance in deciding between life and death.

That was the main powerful mitigating factor in this case.

And--

Justice Scalia: I've never heard that described as a mitigating factor before.

I mean, it's certainly worse if you're a triggerman, but I don't know what makes it... somehow it's mitigating if you were not the triggerman.

I would say that you're not guilty of something even worse.

But to call that a factor of mitigation--

Mr. Rivkind: --I think it is mitigating, and the fact that there is a question about one of the people, perhaps the accomplice, which very well could have been Mr. Sanders, wanting to leave before the murder occurred was basis enough to give the jury pause.

And if we look at the deliberations, we realize that there was a jury note, about three quarters of the way through its deliberations, asking the jury the consequences if it could not reach a unanimous--

Justice Ginsburg: But now you're getting into what has sometimes been called "residual doubt".

You point out that a juror asked,

"What if it were not unanimous? "

And you also pointed out that there was an earlier hung jury in this case.

But you didn't argue, below, that residual doubt counts.

It's one thing to say,

"If defendant argues it, the court should take it into account. "

But there was no such argument made in this case.

Mr. Rivkind: --You mean in the trial court.

Justice Ginsburg: At any time.

Mr. Rivkind: No, in the... in the ninth circuit, residual doubt was argued.

It is a mitigating factor in--

Justice Ginsburg: But in the trial court, it wasn't, because that's when it would count.

Mr. Rivkind: --No, in the trial part, nothing was argued, because trial counsel acquiesced to Mr. Sanders' request that there be no penalty defense.

And I want to make it clear, this is not a case because Mr. Sanders wanted death.

As his trial counsel told the court, Mr. Sanders insisted he was innocent and wanted to go home.

The trial court made it very clear to him, that wasn't an option.

Justice Ginsburg: Didn't... wasn't there a statement that he was indifferent between death and life imprisonment?

Mr. Rivkind: It... there was a statement that he did not want either penalty.

Justice Kennedy: Do you... do you defend that the difference in... our distinction between balancing and nonbalancing... or, pardon me, "weighing" and "nonweighing" States... your answer to Justice Breyer indicates the... that you would not be disconsolate if we jettisoned the whole... the whole distinction.

And isn't it true that it's paradoxical that a State which tries to structure the selection phase by giving specific factors as held to a higher standard than a State that doesn't?

That seems to me very odd.

Mr. Rivkind: Well, I don't... I don't think that's odd.

I think what that recognizes is that the court has said,

"While you do not have to give a... we do not need a guided discretion statute. "

--that, as Zant holds, a jury can have complete, absolute discretion in choosing between life and death... that when a State does regulate that, it must be done within the contours of the Constitution.

The essential wisdom in the distinction between "weighing"--

Justice Kennedy: But it is within the contours of the Constitution if, in a "nonweighing" State, the same evidence could be considered.

Mr. Rivkind: --But it... I don't... again, I don't think it's a question of evidence, I think it's a question of what are those factors that are being put in... on... in death's side of the scale, and how are they being balanced--

Justice Breyer: Yeah, and I can imagine, in "nonweighing" State, a prosecutor banging on and on, at the eligibility stage, on factor X, and really fixing that in the mind of the jury, and it turns out that factor X is not an aggravator.

Now, the jury might have been prejudiced.

And I can imagine, in a "weighing" State that, because the evidence is the same, and because there were so many factors just like it, the fact that they used the wrong factor didn't really make any difference.

So, it seems to me the lineup between harm... real harm in a case, and weighing/nonweighing, it doesn't line up terribly well.

But you have the experience.

And that's why I'd like your reaction.

Mr. Rivkind: --In terms of the rule of--

Justice Breyer: Yeah.

Yeah.

I mean, a serious effort to go back and say, "Look, harmless error throughout".

I mean, I'm pushing the same thing I said before.

Justice Scalia: --He wants to know whether you would like to be thrown--

Justice Breyer: yeah.

Justice Scalia: --into the "Breyer" patch.

I think--

[Laughter]

--I think the answer is yes.

[Laughter]

Mr. Rivkind: --I... I'd like harmless error analysis.

I think... I think that would be a simpler approach.

It would accommodate competing interests, because each State's statute would be informing the prejudice analysis, and you would be looking at how many different sentencing selection factors were before the jury.

Justice Kennedy: In that--

Mr. Rivkind: I--

Justice Kennedy: --analysis, would you use, as one factor, the circumstance that an eligibility determination was made by the jury, was focused on by the prosecutor, and that that was impermissibly vague?

Would that be a component of your harmless error analysis?

Mr. Rivkind: --I'm sorry, Your Honor, I don't... I didn't--

Justice Kennedy: Would it be a--

Mr. Rivkind: --get the question.

Justice Kennedy: --Well, we have the rule, already, that if there is an invalid eligibility factor and it's a "weighing" State, that there's... that the process is defective.

Would you carry over that same argument just as one component of the harmless error analysis?

Mr. Rivkind: I think if we had... well, I first would like to clarify something you said.

I think, under the existing law, it's not... it is not just eligibility factors, the invalidity of eligibility factors... that create... arbitrarily skew the sentencing, that, as we see in Mississippi, the

"heinous, atrocious, and cruel. "

was only a selection factor.

So, I think it... this focus on an equivalence or a overlap between eligibility and selection factors is just not found in the Court's case law.

Justice Kennedy: But that was the whole basis... correct me if I'm wrong... for the ninth circuit's case in your... ninth circuit decision in your favor in this case.

In this case, it certainly--

Mr. Rivkind: Well, in--

Justice Kennedy: --is an accurate description of--

Mr. Rivkind: --in this--

Justice Kennedy: --what the rule is.

Mr. Rivkind: --case, yes.

The special circumstances that are the invalid aggravating factors were eligibility requirements.

But that is not... as the Federal death penalty shows, that is not a prerequisite in the weighing/nonweighing distinction.

And I think I didn't answer the second part of your question, but, I'm sorry, I can't remember it--

Justice Kennedy: Well, I--

Mr. Rivkind: --about--

Justice Kennedy: --I was just asking if we can import the same formal rule we now have and reach... and... if we don't consider the same things in harmless error analysis.

Mr. Rivkind: --Well, I think they would be.

I mean, the way I would envision it is that if the jury weighs an invalid factor... and under Sochor, the invalidity does not have to be based on Federal constitutional law.

State law invalidity creates the same harm; you're arbitrarily skewing the process toward death.

Chief Justice Roberts: But it--

Mr. Rivkind: If--

Chief Justice Roberts: --but it's only invalid as an eligibility factor.

It's not invalid as a selection factor.

Mr. Rivkind: --In Sochor.

Chief Justice Roberts: In this case.

Mr. Rivkind: In this case, it's invalid as to both, because it serves both purposes.

It's... first, sees it as an eligibility factor, and then the... the provision says... it doesn't say just to consider special circumstances in some vague, undefined way; it specifically refers the jury back to its findings at the guilt phase.

Section 190.3, subsection (a), says,

"Consider the existence of an... any special circumstances found true at the guilt phase. "

That's telling the jury,

"Your... the findings that made the defendant get the death penalty-- "

Justice Scalia: It's the same jury.

It's the same jury.

The same jury that found it atrocious and cruel in the guilt phase would find it atrocious and cruel in the weighing stage.

I don't see--

Mr. Rivkind: --In--

Justice Stevens: But in... would you clarify something?

Is it the correct interpretation of the California law that the... the California court held, in effect, that you may not consider the fact that the crime was heinous and atrocious for purposes of deciding whether he's eligible for the death penalty, but you may consider that fact for the purpose of deciding whether to impose the death penalty?

Mr. Rivkind: --No, I think if it's invalid for one, it's invalid for the other.

Justice Stevens: But is that what the California court would say?

Mr. Rivkind: The California... the... in Engert, the question was eligibility.

In this case, the question was only selection.

And the California Supreme Court... the State conceded that the

"heinous, atrocious, and cruel. "

circumstance was invalid, and the court, in this case, addressed its use as a selection factor.

Justice Scalia: --But what... the specificity you need for the narrowing factor does not exist with respect to mitigating factors.

We've said anything can be a mitigating factor.

I find it impossible to believe that the California Supreme Court said not only is the phrase

"heinous, atrocious, and cruel. "

too... you know, too vague for the narrowing factor, but, when you get to the weighing phase, the fact that the murderer sliced up his victim with a thousand cuts of the knife cannot be taken into account by the jury.

That's unbelievable.

Mr. Rivkind: Well, the eighth amendment, as this Court said in Tuilaepa, does apply to the selection factors.

It looks as... at whether there's a commonsense core meaning.

Justice Souter: No, but isn't... I want to throw you a suggestion... isn't the answer to that problem that anything may be considered as mitigating evidence, but a mitigating factor is a conclusion that evidence has a certain significance, and not everything may be taken into consideration as a mitigating factor?

Isn't... the problem that Justice Scalia raises addressed by distinguishing between evidence... consider it all... and factors, a characterization of evidence which may not necessarily be considered.

Justice Ginsburg: You mean aggravating--

Mr. Rivkind: Yeah, I'm confused.

Justice Souter: Yeah.

Yeah.

Mr. Rivkind: Okay.

Because we're--

Justice Souter: Yeah.

Mr. Rivkind: --Okay.

Because we're talking about aggravating factors.

Justice Souter: Yes.

Yes.

I misspoke.

But, I mean, the distinction between "evidence" and "factor" is the... is the key, isn't it?

Mr. Rivkind: It's the key, because the consideration of the circumstances of the crime is not the problem that we have.

What we have is that the jury's told to consider this fact or this finding that the jury understands makes the defendant... because the State has said this is a reason both to make him death eligible and a reason to impose death... creates a weight on death's side of the scale.

Justice Souter: All right.

That means the answer to my question is yes, right?

Mr. Rivkind: Yes.

Justice Souter: Okay.

Justice Scalia: But the statute does not say

"the finding of any special circumstances found to be true. "

It says

"the existence of any special circumstances found to be true. "

That's what they're... that's what they're instructed to consider.

The existence.

In determining the penalty, the trier of fact take into account the following, (a), it says, the "existence" of any special circumstances found to be true; not the "fact" that they were found to be true.

Mr. Rivkind: Well, I think the prosecutor's argument in this case shows that they understood it as the finding.

The prosecutor here argued... in the precise language of the special circumstance, argued that this...

"the heinous, atrocious and cruel nature of this crime. "

parroting the language of the special circumstance.

Clearly, the jury, I think--

Justice Souter: And that was correct under the law, wasn't it?

In other words, "special circumstance" means the same thing when it's referred to... the term means the same thing when it's referred to in the statute on selection as it means in the statute on eligibility.

Mr. Rivkind: --Yes.

Justice Souter: Okay.

Mr. Rivkind: In this case, what we have under the law that exists now is that California assigned a specific role to the aggravating circumstances that included the special circumstances--

Rebuttal of Jane N. Kirkland

Chief Justice Roberts: Thank you, Ms. Rivkind.

Ms. Kirkland, you have two and a half minutes left.

Mr. Kirkland: I'd like to make three quick points in rebuttal.

The first is that, as to the claim... Ms. Rivkind's claim, that she's reiterated here, that the California Supreme Court has determined that the "special circumstances" label has some independent weight that it's important for the jury to consider at sentencing... she's only cited half of the sentence in Benson and Hamilton.

The other half rebuts her claim.

The sentence is,

"Although we presume that the jurors followed their instructions and considered the invalid special circumstances finding, independent of the underlying facts. "

--that's what she relies on... they say, then, as they've said in a number of cases,

"we cannot conclude that they could reasonably have given them any independent significant weight. "

So, it's just the point we're making.

It's just a label that does not carry with it any independent significant weight, because the evidence, the argument, the circumstances are all before the jury in the same way.

The second point is that, while there may be some doubt as to whether Mr. Sanders was the actual killer in this case, there's no question as to his complete culpability in the crime.

He was the leader.

He led Cebreros there.

He was the one who incited the crime in order to cover up for a prior botched robbery.

Justice Ginsburg: Do you agree that such residual doubt factors are appropriately considered if the defendant didn't raise them?

I mean, the question of... that, yes, the jury found the defendant guilty beyond a reasonable doubt, but maybe there's something that makes that determination doubtful.

Mr. Kirkland: I don't think that's an appropriate consideration here, where it wasn't raised, ever.

The third point is that we wouldn't be here, except for the overlap in factor... sentencing factor (a).

That subclause, which the California Supreme Court has repeatedly held, means only that the jury is to consider all the facts and circumstances of the crime, including the facts and circumstances underlying the special circumstance, or eligibility factor.

If that subclause wasn't in there, our eligibility factors in the special circumstance, and our sentencing factors, would be completely mutually exclusive and there would be no issue whatsoever.

Chief Justice Roberts: Thank you, Ms. Kirkland.

Mr. Kirkland: Thank you.

Chief Justice Roberts: The case is submitted.

Attribution:

The Oyez Project

Featured:

Brown v. Payton - Oral Argument

Fri, 09 Jan 2009 14:49:00 +0000

Case:

Brown v. Payton

Media File:

03-1039_20041110-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Andrea N. Cortina

Justice Stevens: We will now hear argument in Brown against Payton.

Ms. Cortina.

Mr. Cortina: Justice Stevens, and may it please the Court:

In this case, the Ninth Circuit violated AEDPA by reversing the California Supreme Court's decision affirming Payton's 1982 death sentence.

The California Supreme Court applied the exact right case, namely Boyde v. California, in the very manner contemplated that... by that decision when assessing Payton's claim that his jury misunderstood the court's instructions and, in particular, factor (k) so as to unconstitutionally preclude consideration of his mitigating evidence.

The California Supreme Court's application of Boyde is precisely the type of good faith application of Federal constitutional law to which AEDPA demands deference.

It is manifestly not objectively unreasonable, and this can be demonstrated in three aspects of the decision.

The first is that the California Supreme Court recognized Boyde's specific holding that factor (k) facially comported with the Eighth Amendment.

The second is--

Justice Souter: Well, I thought the holding was that factor (k), standing alone, does... does not raise a... does... does not, standing alone, raise a question of reasonable probability of... of misunderstanding or misapplication of the law.

And that's not what they're claiming here.

They're claiming here that there was something much more than (k) standing alone.

As I understand it, they're claiming that the difference between this and Boyde and why this is not a standalone kind of case is that the prosecutor deliberately argued or argued law that was in fact wrong and... and continued to do so even after the court interrupted the argument and that the court never gave an instruction that corrected the erroneous statements of law that the prosecutor had made.

So that's... that's why they're... they're saying this is not a Boyde situation.

Mr. Cortina: --Your Honor, Boyde has two specific components to its decision, which is, first, what factor (k) means standing alone, and you need to resolve that issue, which California did, in deciding the impact of the prosecutor's misstatements concerning factor (k).

So that, first, you start from the premise, as the California Supreme Court did, in following Boyde, that factor (k) facially directed for consideration of Payton's mitigating evidence.

Justice Souter: Well, no, no.

The... the mitigating evidence that Boyde held could be considered without a... (k) being a bar, was mitigating evidence about the... the character of the individual prior to or at least up to the moment of the crime.

So this is... this is different kind of evidence, and I... I mean, this is post-crime evidence.

And... and I don't see that... that Boyde's holding is so broad as obviously to cover this at all.

It might be a... it would be a... a closer question if it hadn't been for the prosecutor's argument and the judge's failure to correct it.

But even... even without those elements, there would be a serious question whether Boyde covered this at all.

Mr. Cortina: Your Honor, the... respectfully I disagree.

I believe that the California Supreme Court correctly and... and reasonably determined that Boyde's holding encompassed Payton's character mitigating... Payton's mitigating character evidence because the holding in Boyde... or the issue directly presented by Boyde was whether factor (k) limited consideration to circumstances related to the crime or allowed for non-crime related mitigating evidence in deciding the appropriate penalty.

Justice Ginsburg: What do we make of the Chief Justice's fear statement, not once but twice, in Boyde?

The prosecutor never suggested that background and character evidence could not be considered.

So mustn't we take Boyde with that qualification when we have a case where the prosecutor, indeed, suggested that this information could not be taken into consideration as a mitigating factor?

Mr. Cortina: No, Justice Ginsburg.

First, you must assess factor (k) facially and that's what Boyde did.

Then the next question is did the prosecutor's misstatements concerning factor (k) mislead the jury to believe that they could no longer consider Payton's mitigating character evidence.

And that would be the second component of Boyde which is a general test for assessing the reasonable likelihood a jury misunderstood the instructions in the context of the proceedings.

And the particularly relevant and important inquiry in this case is the California Supreme Court's application of Boyde's reasonable likelihood test in the context of the proceedings.

Justice Kennedy: Well, do we take... do we take the case on the assumption that the trial court erred in not giving a curative instruction and in saying, well, this is a matter for the attorneys to argue?

You... you don't argue about what a statute means.

That's a question of law.

You don't argue that.

You can argue the facts, that it's mitigating or not mitigating or that it's extenuating or not extenuating, which is I think how you can interpret a lot of this.

But it... it seems to me that the trial judge does make a mistake when he says, well, well, this is for the... this is for them to argue when the... the point of the objection was that there was a misinterpretation of the instruction.

That's a legal point.

Mr. Cortina: And that is a fact that was expressly considered by the California Supreme Court in appropriately applying Boyde's general test for whether the jury misunderstood the court's instructions and an instruction that facially called for consideration--

Justice Ginsburg: Not that... that the jury misunderstood the judge's instruction, that there was no instruction.

I mean, the... the picture that's given here is the defense attorney says, I can use this to mitigate.

The prosecutor says this is not legitimate mitigating evidence, and he said that several times.

And the judge said, well, you could both argue it, and the judge never instructed the jury.

He left it to the prosecutors to argue the law to the jury and for the jury to make that legal determination.

It... it seems to me that that... that is surely an error.

Now, you could still say, well, even so, it was harmless.

But... but I don't think... can there be any doubt when the judge tells the attorneys, you argue the law to the jury and let the jury decide what the law is?

Mr. Cortina: --Yes.

There... there is a reasonable likelihood that the jury did not take the prosecutor's statements so as to preclude consideration of Payton's mitigating evidence because the prosecutor's statements cannot--

Justice Souter: Well, even... even if... even if that's argument is... is on point, just taking your... your response on its own terms, where do you get a reasonable likelihood?

Mr. Cortina: --Because the prosecutor's statements cannot be construed in a vacuum.

You have to look, as Boyde required and as California did, at the context of the entire proceedings.

What we're here... what the jury was doing in Payton was deciding whether Payton should live or die, the sentencing determination.

Justice Souter: Yes, but let's get specific.

You... you said there isn't a reasonable possibility.

Why?

Get... get down to facts.

Why isn't there a reasonable possibility?

Mr. Cortina: Why there is not a reasonable likelihood the jury misunderstood?

Justice Souter: Yes.

The prosecutor stands there and twice says, before the judge interrupts him and after the judge interrupts him... says, you cannot legally consider this evidence.

It does not fall within (k), and the judge never corrects it.

Why is there not a... a reasonable likelihood of... of jury mistake?

Mr. Cortina: One, Your Honor, the judge admonished the jury that the prosecutor's statements were that of an advocate, and that--

Justice Souter: No.

Precisely, if I recall... and you correct me if I'm wrong, but I thought what the judge said was that the prosecutor's statements were... were not evidence.

Of course, they're not evidence.

The issue isn't whether they were evidence.

They were statements of the law.

The judge didn't say anything about whether they were correct or incorrect statements of the law.

It seems to me that the judge's response to the objection was totally beside the point.

Mr. Cortina: --The... nevertheless, the judge's response relegated the prosecutor's statements as to his personal opinion as to that of a... some... as... as... of... of... to argument, which is a statement of an advocate.

And the jury, from the time it was empaneled, guilt phase, and through the penalty phase, and at the concluding instructions was repeatedly instructed that they would be getting the instruction on the law from the court.

And here--

Justice Souter: And the court didn't give them an instruction on this contested point.

Mr. Cortina: --I respectfully disagree.

Justice Souter: He didn't come out and say, yes, you can consider this under (k).

He never said that.

Mr. Cortina: No, but (k) says you can consider it under (k).

Justice Souter: (k) says you can consider evidence that... that goes to the gravity of the crime.

I will be candid to say I think you're stretching things about as far as you can stretch, as Boyde held, that... that character evidence pre and up to the time of crime can be considered reasonably under that factor.

But certainly evidence of what an individual did after the crime is committed does not naturally fall within (k) at all, and I don't know why any juror would consider it unless a judge came out and said flatly you can.

Mr. Cortina: Your Honor, the California Supreme Court reasonably applied Boyde's holding, that factor (k) did call for consideration of character evidence, and that's precisely what Payton presented--

Justice O'Connor: Well, what if we conclude that there was an error here?

Is there a harmless error argument that you fall back on?

Mr. Cortina: --Yes, Your Honor, there is a harmless error, but before we even get to harmless error, the fact that you disagree with the ultimate conclusion of the California Supreme Court under AEDPA is not sufficient.

Justice Stevens: May I ask--

Mr. Cortina: The California Supreme Court's decision--

Justice Stevens: --May I ask a question that goes sort of to the beginning?

What is your position on whether or not the prosecutor correctly stated the law?

Mr. Cortina: --The State concedes, and as the California Supreme Court recognized, the prosecutor misstated the law, but the jury would not--

Justice Stevens: Do you also concede he did so deliberately?

Do you concede there was prosecutorial misconduct is what I'm really asking.

Mr. Cortina: --Absolutely not, Your Honor.

The prosecutor did not commit misconduct.

The prosecutor made a mistake, and the misconduct analysis, which is similar to what Boyde contemplated when they set forth the general standard for assessing whether a jury would misunderstood... misunderstand an instruction is... is almost the same when... when you're analyzing whether the question is prosecutorial misconduct.

Boyde sets forth the test for how to assess a misstatement by the prosecutor, and Boyde said that at the first instance, a statement of the prosecutor is not to be considered as having the same force as instructions from the court.

And that principle was recognized by the California Supreme Court and reinforced--

Justice Stevens: Of course, that... that statement went to whether the jury was apt to accept it, not to the question of whether the prosecutor acted improperly.

Mr. Cortina: --I'm sorry, Your Honor.

The... in this case, the prosecutor made a mistake.

I don't think that there's any evidence to support the conclusion that the prosecutor committed misconduct in this case, particularly--

Justice Kennedy: Well, I... I can see that a... a prosecutor could say, you know, this isn't factor (k) evidence, as a way of saying that this evidence is of little weight.

He did say at... at one... at one time, you have not heard any legal evidence of mitigation, and... and that... that's the troublesome part.

Mr. Cortina: --Your Honor, the... the State concedes that the... the prosecutor did make misstatements, but I think that the bulk... as you pointed out, the bulk of the prosecutor's argument went to the weight to be attributed to Payton's mitigating evidence, and actually most of the argument by the prosecutor indicating that Payton's evidence didn't mitigate the seriousness of his rape and murder is... there were arguments that were made by the prosecutor in Boyde and which Boyde found were not objectionable.

But again, the important scrutiny is that the California Supreme Court evaluated the prosecutor's statements within the correct analytical framework matrix established by Boyde.

They considered all the correct principles, the... the effect of argument of counsel.

They considered the instructions, and like Boyde, they found that factor (k) facially directed the consideration--

Justice Ginsburg: Suppose... suppose I were to take the view that it is a violation of clearly established law for a court to allow a prosecutor repeatedly to misstate the law, misinform the jury about what the law is on a life or death question without correcting that misstatement, without saying to the jury, jury, it's not for the prosecutor to argue what the law is.

I tell you what the law.

If the judge doesn't do that, then that meets any standard of violating clearly established law about which there should be no doubt that when the prosecutor makes a misstatement on a life or death question, it is the judge's obligation to say, jury, he is wrong.

You take your instruction from me and here's my instruction.

Suppose that's my view of this case.

I don't... Boyde and all these other cases... it just strikes me that that's clearly wrong.

What do I do with that?

Mr. Cortina: --Well, you can find that the court was wrong and not like what you did... what the court did, but the inquiry is whether the jury misunderstood the instructions as a result of the court's conduct.

And that requires an analysis of the context of the proceedings, and that is precisely what the California Supreme Court did.

They--

Justice Ginsburg: Well, now you're getting to the question I think that Justice O'Connor raised a few minutes ago about are you urging, yes, this is error, but it was harmless?

Mr. Cortina: --No, I am not agreeing that this was error at all.

I agree that the prosecutor made a misstatement and that the California Supreme Court thoroughly and properly evaluated that statement--

Justice Kennedy: Well, but just on that point, if the prosecutor makes a misstatement, doesn't the trial judge have an obligation to correct it if it's significant?

Mr. Cortina: --The... in this case--

Justice Kennedy: Or am I wrong?

Or am I wrong about that?

The judge just kind of watches the ship sail over the waterfall?

Mr. Cortina: --The... I mean, the... the trial court did correct it.

It may not be the sufficient correction in this Court's eye, but the court did give an admonition that relegated the prosecutor's statements to that of the advocate and not to the instructions of the court.

Justice O'Connor: Well, what if the prosecutor had said several times to the jury during the course of his arguments that the burden of proof by the State is by a preponderance, not beyond a reasonable doubt?

And the judge just says the prosecutor's arguments are just that, they're not the law.

I'll instruct you.

But he never says anything.

Is that okay?

Mr. Cortina: It's not what we'd optimally want the court to do, but that's not the inquiry that's presented and answered by Boyde.

The question is as a result of what happened.

Trials are not error-free.

We wish that they were, but they're not.

The question is how do you respond to when a... when a prosecutor makes a misstatement of law.

And Boyde addresses that question.

Boyde--

Justice O'Connor: Well, normally we would think the trial judge would correct a misstatement of the law by counsel.

We would normally think that, wouldn't we?

Mr. Cortina: --Yes.

Justice O'Connor: And it wasn't clearly done here.

I mean, the... the jury was reminded that arguments of counsel are just that.

But there was no attempt to correct what appeared to be a misstatement.

Mr. Cortina: The court's admonition was sufficient.

But we're... we... we have to respond to the case that's before you.

Justice Ginsburg: What... what admonition was sufficient?

The court said something about evidence and everybody... I mean, there's no question what the prosecutor said isn't evidence.

But he didn't tell them he has misstated the law.

We're not talking about evidence is not at issue all.

Neither side suggests that it is.

It's a question is what is the law that governs this controversy, what is the law that the jury must apply to make a life or death decision.

Mr. Cortina: Right, and what was--

Justice Ginsburg: And... and you--

Mr. Cortina: --Sorry.

Justice Ginsburg: --you said the judge corrected it, and I read this joint appendix.

I could not find any correction.

Mr. Cortina: The court's admonition that the prosecutor's argument was not evidence but argument of counsel relegated the statements of the prosecutor to that of an advocate and did not take the prosecutor's arguments and elevate it in place of the instructions given--

Justice Ginsburg: Then... then it... then it has another problem with it because then the judge is saying that's an argument.

Jury, you've heard arguments on both sides.

You decide.

But it isn't for the jury to decide what the law is.

Mr. Cortina: --But the analysis is whether there was a reasonable likelihood the jury misunderstood the court's instructions so as to preclude consideration of Payton's mitigating evidence, and that--

Justice Kennedy: Did the judge instruct the jury that you are to consider all of the evidence which has been received during any part of the trial?

Mr. Cortina: --Yes, Your Honor, and actually that's one of the inquiries that Boyde required, is that you look at the instruction itself, the other instructions, and that's an inquiry the California Supreme Court did, in fact, conduct.

And that is, the jury was presented with... with a instruction that said, you shall consider all the evidence unless otherwise instructed, and nothing out of any of the factors (a) through (k) limited the jury's consideration of Payton's mitigating evidence or precluded... pardon me--

Justice Kennedy: Oh, are you taking the position that as a matter of California procedure, the jury was entitled to consider matters that... matter that was not within (a) through (k)?

Mr. Cortina: --I think that the instructions encompassed the jury considering something not specifically in (a) through (k) for purposes of mitigating evidence because the instructions say, you shall consider the evidence presented, and that was Payton's evidence--

Justice Kennedy: Have the California courts said that?

Mr. Cortina: --That?

Justice Kennedy: Have the California courts said that (a) through (k) are... is not intended to be exhaustive at the pre-Payton... pardon me.

Yes.

Have they said that pre-Payton?

Mr. Cortina: I don't think that that issue has been presented and decided by the California Supreme Court specifically--

Justice Kennedy: I... I thought the case was being argued to us... correct me if I'm wrong... on... on the theory that this was factor (k) evidence.

Mr. Cortina: --It is our position that it... it does fall within factor (k) evidence, but in deciding whether the... whether Payton's jury was unconstitutionally precluded from considering the evidence, you look to the... all the instructions.

And when you consider the direction to consider all... that you shall consider all the evidence and then the concluding instruction--

Justice Stevens: But Ms. Cortina, the... the red brief... maybe it's not accurate.

They say the instruction was all the evidence received during any part of the trial in this case, except as you may hereafter be instructed, and then that followed what... the factor (k) discussion came after that.

So would it not have been possible that the jury would have thought except for the following things?

Or is there something more that I missed?

Mr. Cortina: --No.

The written instruction followed the arguments of counsels.

And what... and so no, there was no instruction after that.

Justice Stevens: So if they misunderstood the factor (k) instruction, they would have thought they could not consider all the evidence.

Mr. Cortina: There was no reasonable likelihood that they felt that they could not consider Payton's evidence under factor (k), and the California Supreme Court--

Justice Stevens: Well, if they believed the prosecutor, they would have thought they couldn't.

Mr. Cortina: --But there... but as analyzed by the California Supreme Court, it is not reasonably likely that the jury would have accepted the prosecutor's first few misstatements.

And as I was saying, to do so, the jury would have had to--

Justice Stevens: But all... all I'm directing my inquiry to is to the significance of the instruction to consider all the evidence.

I think it's they could consider all the evidence, except that which may not be admissible, as I now... or may not be relevant as I shall hereafter instruct you.

Mr. Cortina: --However, nothing in the following instruction says you shall not consider Payton's mitigating evidence.

Justice Stevens: No, but the prosecutor said that if you interpret the last instruction properly, you shall not do so.

Mr. Cortina: He said that it didn't fall within factor (k).

However, the... the jury would... there is no reasonable likelihood and the California Supreme Court was not objectively unreasonable, including... in concluding that the... that the jury would have accepted the prosecutor's first few misstatements and chosen to disregard Payton's mitigating evidence because the jury just sat through eight witnesses testifying to Payton's post-crime remorse and rehabilitation.

They sat through that without any misstatements by the prosecutor.

So they recognized that they had heard this evidence and that it was relevant and that it was subject to consideration.

Then they heard the arguments of counsel concerning the weight to be attributed to Payton's mitigating evidence.

And although the prosecutor did make the misstatements, his statements were relegated to that of an advocate.

And to conclude that the jury would disregard the repeated instructions to follow the... to take the law from the court and their inevitable, long-held societal beliefs that remorse and rehabilitation are relevant to making an appropriate moral reasoned response in deciding the life or death sentence is not a reasonable conclusion.

And we know that the fact... in fact, that the jury did consider Payton's mitigating evidence by virtue of the questions that the juries... the jury asked the court during deliberations.

The jury asked whether Payton would be eligible for parole and whether any change in the law could retroactively make him eligible for parole.

You only get to a consideration of whether... what the effect is of saving Payton's life, under the California sentencing scheme that was... existed at that time, if you believe that there's mitigation evidence to consider because California, at the time of Payton's sentencing, instructed the jury that if the aggravating circumstances outweigh the mitigating circumstances, you shall impose death.

Their... pardon me.

Justice Souter: They... they might have thought that the aggravating circumstances were entitled to... to great weight.

I mean, we don't know how they evaluated the aggravating circumstances.

Mr. Cortina: That might be one reasonable conclusion, but the other reasonable conclusion--

Justice Souter: But I mean, that... that is a possible conclusion, and therefore, it doesn't follow from the fact that they raised the question about life without parole that they necessarily had found... that they were necessarily considering the mitigating evidence.

Mr. Cortina: --It's a reasonable inference to be made from the questions asked, and that's what you're looking at.

Justice Souter: It's... it's one possibility.

Isn't that all?

Mr. Cortina: It's one reasonable inference, and that's what's the important inquiry, is that the trial... the California Supreme Court reasonably considered the relevant, pertinent facts and all the applicable law in reaching a decision that Payton's jury was not unconstitutionally precluded from considering his mitigating character evidence.

And I think that... that the California Supreme Court's decision demonstrates that it applied Boyde to the letter faithfully and methodically, and that it... it considered all the relevant facts and that its decision under these circumstances is manifestly not objectively unreasonable.

And that is the requirement, and that is the inquiry that we're here today to resolve.

The... the Ninth Circuit failed to give the appropriate deference to the California Supreme Court's decision in deciding that the penalty should be... Payton's penalty should be reversed.

And the Ninth Circuit instead conflated objectively unreasonable with a determination that it personally felt that there was constitutional error and doesn't respect the distinction recognized in AEDPA between a incorrect decision... or a correct decision, incorrect decision, unreasonable decision, and the higher threshold of objectively unreasonable.

And unless this Court has any further questions, Justice Stevens, I would like to reserve the remainder of my time.

Justice Breyer: How long did the penalty phase take?

Mr. Cortina: The penalty phase took about a day with eight witnesses.

Justice Stevens: Thank you.

Mr. Gits.

Argument of Dean R. Gits

Mr. Gits: Thank you, Justice Stevens, and may it please the Court:

I'd like to start off, if I may, by addressing some of the points that were brought up just earlier, and I'd like to indicate to this Court that the California Supreme Court has held that factors (a) through (k) are the exclusive considerations that the jury must encompass in deciding whether or not to impose death or life.

Justice Kennedy: Has factor (k) been supplemented with a CALJIC instruction since Payton?

Mr. Gits: It has.

In 1983, 2 years after Payton's trial, it was supplemented to include all of the mitigating evidence that this Court has indicated the jury is entitled to consider.

But what is important--

Justice Kennedy: Excuse me.

Do they still call it factor (k) or do they just have a supplemental instruction that follows factor (k)?

Mr. Gits: --It's been a couple of years since I've done a death penalty trial, but I think it's still called factor (k).

It's just supplemented and changed that way.

The second thing is that this Court has indicated some concern over the jury question that was raised first in... in the State's reply argument.

And I need to put the Court, I think, in... in proper context as to what occurred in... in that jury question.

The case was given to the jury at 11:55 on the date of... of the determination, and the jury was told to select a foreman.

5 minutes... they went into the deliberations room.

5 minutes later they came out and went to lunch.

They didn't commence their deliberations thereafter until 1 o'clock.

At 1:10, they came out with a... the question that is now before the Court.

And I want to suggest to this Court that it is not reasonable to believe that during that 10-minute span of time the jury considered the... whether or not factor (k) was applied.

Justice Kennedy: And what was the question?

Mr. Gits: The question... there were really two questions.

One... and I'm paraphrasing... is there any possibility Mr. Payton could be released on parole if we give him life, and the second one is if the law is amended, could that be construed to be retroactively applicable to Mr. Payton.

Those were the two questions.

Justice Breyer: Those don't sound as if they thought his conversion to Christianity made a difference.

Mr. Gits: I think, Your Honor, what the jury articulated is what this Court has seen on many occasions, the jury's concern about does life without possibility mean life without.

Justice Breyer: Yes.

Mr. Gits: They never went beyond that at this point in time.

So what I'm suggesting to this Court is that the short span that they had to write that question, which I agree, given enough time, might permit an inference that they did consider factor (k), isn't applicable in this case.

Justice Kennedy: Well, an equal inference is they just felt that it was entitled to no weight at all given the horrific nature of this... of this crime.

Mr. Gits: Yes, I agree.

And my position isn't that... that the short span of... you know, assists our position.

Our position is that this won't assist this Court in arriving at a decision about whether the jury considered it.

Justice Kennedy: And you have to show there's a reasonable likelihood that the jury might have come to an opposite conclusion.

Mr. Gits: Yes.

And Boyde teaches that the way to do that is to look at the context of the entire case in conjunction with the... the instruction that was given in this case.

And I want to start out that I... I agree with the State that the first thing this Court should do is look at the instruction standing alone.

And I want to indicate that without reference to the context of the case, the instruction standing alone does not support the inference that Payton's post-crime evidence could be considered.

Now, I agree that in the context of the case, the context of the case could change that consideration.

For instance, if the court, as this... some member of this Court already indicated, told the jury that factor (k) is to encompass Payton's evidence, or even if the prosecutor may have said to the jury during his argument, ladies and gentlemen, although it might not seem like Payton's evidence could be considered by you under factor (k), in fact it can, then we would be left with a situation very similar to Boyde where there really is no argument among counsel as to whether or not the evidence could be subsumed under (k).

And that, in the context of that case, would permit it.

Justice Kennedy: Well, on... on that point... and I... I recognize it's... it's not nearly as clean as the hypothetical you present... he did say... this is the prosecutor.

The law in its simplicity is that if the aggravating factors outweigh the mitigating factors, the sentence should be death, and so let's just line these up, and then he talks about the... the conversion.

So there were other parts of his argument that indicated by one interpretation this is not mitigating under special (k)... under factor (k).

But here he does say that you line that up and you weigh one against the other.

Mr. Gits: I... I would respond to that by saying two things.

He does say that, but after he says, ladies and gentlemen, I want to address some of... of Payton's evidence.

I'm not suggesting and I'm... and I don't believe that it applies under factor (k).

But then he went on to discuss that evidence.

And I agree he did.

I certainly can't say he didn't.

But... but the real issue here is what effect likely did that have on the jury, and I... I'm indicating that... that given the preliminary... his preliminary part about it still doesn't apply but I will address it, that is unlikely to give the jury any confidence that that evidence could be considered.

So it's not at all a concession that occurred in this case whatsoever.

Justice Ginsburg: Well, why wouldn't the jury conclude... why isn't it the most logical conclusion that, gee, the judge had us sit here through eight witnesses and listen to all that and he didn't exclude any part of it, so of course we must consider it because otherwise we wouldn't have been exposed to all of it?

Mr. Gits: That was a relevant consideration in Boyde and I think a powerful consideration in Boyde and in California v. Brown.

Because of the context of this case, it's not relevant here.

Once the judge permits both counsel... one counsel to argue one way and the other counsel to argue the other way, the jury is now being relegated as the... the finder of the law.

In order to evaluate whether or not they could consider that evidence, they had to look at the evidence that was presented.

Justice Kennedy: Well, they... they always have to say whether or not we're going to really weigh this or is it just too tangential, and that's one way of saying, well, this really isn't mitigating.

And we know as lawyers that it is mitigating in a sense that is... that is relevant and that it's there for the jury to give it the weight that it chooses.

But jurors say, well, you know, this... this just is not important is what they're saying.

Mr. Gits: Well, when the prosecutor says this doesn't fall under (k) and the defense attorney says it does fall under (k), all I'm indicating is that the argument that this would be viewed as a charade no longer has any effect.

It is now a preliminary thing that the court... that the jury must look to.

Justice Kennedy: Well, it's a shorthand for saying it doesn't fall under (k) because it just is of so little weight.

Now, that's I think how the jury might have interpreted it.

Mr. Gits: Yes, Your Honor, they might.

But the issue here is whether or not there's a reasonable likelihood that the jury did not consider that, and... and that's--

Justice Breyer: Actually that isn't really the issue.

I think... I find that easy.

The harder issue is... is whether the... a person who thought about it differently than me, a judge, would have... be objectively unreasonable.

At least for me, that's the hard question.

The question you're arguing is not hard.

Mr. Gits: --Yes.

I don't think I understand Your Honor.

Justice Breyer: I mean, I would perhaps have come to a different conclusion than California Supreme Court on that question, but we can overturn them only if they're objectively unreasonable.

And that's... that's the hard thing because... for me.

Mr. Gits: Yes.

I... there is very... relatively little guidance that we have so far on the AEDPA.

I think the... the cases that do have some relevance are both Wiggins v. Smith and Taylor v. Williams.

Wiggins v. Smith dealt with the failure of the State court to actually evaluate evidence that occurred in this case.

The California Supreme Court opinion on the issue of whether or not the... the court properly conducted itself has one sentence, and the sentence says... and I'm paraphrasing... something to the effect of the fact that the court refused to adorn factor (k) is not in itself a... an error.

Well, we all, I think, would... would concur that that's true, but that doesn't address what happened here.

It's a complete failure to address an all-encompassing event that happened, something close... and I have to be careful here... something close to structural error where the judge gives over the obligation to decide what the law is to the jury.

The California Supreme Court not once ever considered that, and there is no reference to them doing anything other than making that one--

Justice Breyer: Well, no, but I mean, that's... that's really wrong what the judge did.

But... but the... that... that's tangential to the question.

The question is, is it reasonably likely, if that hadn't occurred, that the jury would have considered the evidence that he was converted?

But since it did occur, you know, they... they didn't consider it.

Is it reasonably likely they never considered it?

That's... that's the question.

And then I can imagine, for what reason that Justice Ginsburg said, myself sitting in the California Supreme Court and saying, well, they heard the evidence for 2 days or a day, six witnesses, eight witnesses.

They're not technicians, the jury.

And... and of course, they considered it.

I can imagine that and that's why I'm having... even though I don't agree with it.

Mr. Gits: --Yes.

Considered I agree.

They certainly considered the evidence, but they also, if they were following their obligation under the law, they considered whether or not they were entitled to give that any weight under factor (k).

That was the primary function that was given to them.

So certainly they discussed the evidence, but then did they arrive... did they go in that room and arrive at a decision that maybe we can't by law consider this evidence?

And I think that's the focal point here and that's the thing this Court doesn't know what happened in that jury room.

Justice O'Connor: Except if they heard so much of the evidence, isn't it unlikely that the jury thought they couldn't consider what they heard?

Mr. Gits: The more evidence they hear, the more likely it is I think that human beings are going to consider the evidence.

The evidence... the... the penalty evidence took place over a 2-day period of time, but I want to indicate that it took place over two half-day periods of time, and that if you put the time together, I think it comes to around 70 pages, which should be substantially less than a half-day altogether.

Now, it encompassed eight witnesses, and there was a lot of evidence brought out about post-crime conduct.

But it... it wasn't a massive amount such as there was in Boyde, 400 pages and weeks of testimony.

So I think that that's a... a... an important consideration too.

The... the Court's concern about whether or not the jury would likely consider that, it seems to me, starts with the... an examination of... of factor (k) itself.

And... and I want to indicate that Mr. Payton really didn't start out at the same mark as... as the State did in its case.

The language of factor (k) just doesn't on its face appear to permit consideration of that evidence.

And... and so, therefore, something had to have happened in the trial, we assert, to change that, to make the ambiguous, at least as applied to Payton, evidence of factor (k) applicable so that the jury would reasonably likely consider it.

The events that could have happened during the context of that trial didn't happen.

In fact, everything happened against the defendant.

He starts off with an instruction that's against him that supports, under any natural reading, the prosecutor's language, and then he's buttressed with a prosecutor that given the plain and natural meaning of the language, is going to have a far more compelling position with the jury about whether or not it could be considered.

And the... and the defense attorney's position is really nothing more than an assertion, when he looks at the language itself... an assertion that it was awkwardly worded.

Now... now, the defense attorney made reference to if this was the kind of evidence... if I was a juror and I was considering this, I would think this would be important evidence.

And the answer to that is of course, it is important evidence, but that's not the question.

The question is whether or not it could be considered under (k).

He gives... he, the defense attorney, gives his position that... that (k) was meant to be a catchall factor and it was meant to consume and take into effect Payton's evidence, but he had nothing to support that.

He had no legal position to support it.

He was faced with the plain language of the statute that didn't permit him to do that.

Justice Breyer: Doesn't it?

I mean, it... it says that... what's... what's the exact language of that statute?

I just had it here.

It's... it's gravity.

It's the--

Mr. Gits: It is any other circumstance which extenuates the gravity of the crime.

Justice Breyer: --Of the crime.

You could say it.

Yes, his... his later conversion extenuated the gravity of the crime, not the... not the... when I try to think of this person, who is not me, thinking of that, I say, well, plausible.

Plausible, not perhaps the best, but plausible, isn't it?

Mr. Gits: Well, as we pointed out in our brief, this Court in... in Skipper... some Justices in... in that decision indicated that... well, in fact, the majority indicated that the post-crime evidence of rehabilitation in prison is, in fact, not anything that relates to culpability.

Factor (k), however way you look at it... and I agree that it's sufficiently ambiguous to where, given the right context, the right events happening at trial, a jury would reasonably likely look at it as covering that.

But not under this case, though, because there wasn't anything that happened in Payton's trial which permitted a reasonable inference that in fact that evidence should be considered.

And as to harmless error, I... as we pointed out in our brief, it... under the California statute, which in effect requires that if the aggravating evidence outweighs the mitigating evidence, the jury shall return a verdict of death, if there's no reasonable likelihood that the jury considered factor (k), then in effect Bill Payton was left without any mitigating evidence to be considered by the jury at all.

And that means that the jury had to come back with a verdict of death.

Now, that brings this Court, once the Court... if the Court becomes satisfied as to constitutional error, that brings the Court, I think, very closely to... to this case... this Court's case in Penry v. Johnson because there the jury will not have had a vehicle in order to give effect to Payton's mitigating evidence.

In Penry v. Johnson, in fact, in discussing at least the Eighth Amendment issue, this Court never really even discussed harmless error.

It was reversed without any discussion.

Now, I don't want to suggest the Court didn't engage in a harmless error--

Justice Kennedy: I... I see where you're going, and I... I see that there's some parallel.

The problem in Penry was that the jury... the jurors had to actually violate their instructions, and you have to escalate your argument a bit before you get to that point.

Mr. Gits: --Yes, I... I agree.

It's not exactly identical, but we're very close to... to that point in Penry.

Beyond that, the prosecutor did argue vociferously that the jury should... in its determination, should be concerned about whether or not Bill Payton is going to stab the prison guards in the back, in effect, argued dangerousness, which was appropriate.

But if the jury... he also argued that the jury couldn't consider evidence which plainly pointed to his lack of dangerousness, his good adjustment in prison, his conversion to Christianity.

So, in effect, the prosecutor was able to argue its side and... and the jury wasn't able, when you get to the harmless error analysis, to argue its side.

And that's what makes this, it seems to me, a very strong showing that... that harmless error... that the error in this case is not harmless.

It had a clearly important effect.

Justice Breyer: Is it relevant at all?

This happened 24 years ago.

We're sitting here trying to think of what a jury would have been thinking in a state of the law that's a quarter of a century old and facts... I don't know what to think.

I guess that's just irrelevant?

Mr. Gits: Well, it's certainly relevant to Bill Payton, and... and I don't demean the position of the Court.

It's not relevant in terms of its impact as to future cases.

There are some cases left that are still dealing... out there, dealing with factor (k).

The best of our knowledge, we've... we've done a search and we believe there is about 70 cases dealing with the old, unadorned factor (k), but of those 70 cases, none of them from... and we haven't reviewed all of them, but of the ones we've reviewed, none of them deal both with Payton's pure post-crime evidence, coupled with the prosecutor's unrelenting position to the government that they cannot consider that evidence.

Justice Breyer: So all this was at a time before Penry was decided.

Mr. Gits: It is the time before Penry v. Johnson was decided.

Justice Breyer: Yes.

Mr. Gits: It is not the time before Penry v. Lynaugh was decided.

And when I say--

Justice Breyer: Which is the Texas... the Texas... you know, the ones--

Mr. Gits: --Both are the Texas case.

Both deal with Mr. Penry.

Justice Breyer: --Yes, one and two.

Mr. Gits: Yes.

Justice O'Connor: Is that--

Mr. Gits: Yes.

And when I say it was not before that, I'm talking about on the date of the California Supreme Court's decision.

At the time of the jury determination, this Court only had... or that court only had Lockett to make a determination as to whether the evidence could be... could be considered.

And the court made the decision that he thought the... it could be considered, but then refused to make any adjustments once it became clear that both counsel were going to argue their respective positions on the law.

The... the Court earlier talked about other instructions as impacting upon the... the context of the case, and those were important considerations in Boyde, especially the observation that the jury was to consider any other evidence presented at either time in the trial.

But in the context of this case, Your Honor, it means nothing.

As I've indicated, the jury was required to ignore any evidence it heard at either phase of the trial unless it fit within factors (a) through (k).

If it didn't fit within there, even though they heard that evidence, they were instructed to ignore it.

Beyond that, they were also instructed that the... that they were to consider the arguments of counsel.

Now, being that there was no clear instruction to the jury that they had to consider factor (k) as being relevant evidence, the jury then likely put greater weight on counsel's argument, and that's why it becomes important.

So the other instructions, when you put them all together, rather than putting in proper context what did occur in this case, in effect make it even harder for Bill Payton's position that the jury should consider factor (k) to be relevant.

Justice Ginsburg: The... the prosecutor, at the very end of his closing to the jury, did seem, even if grudgingly with it, to recognize that... that this evidence was mitigating.

I'm looking at page 76 of the joint appendix at the top of the page.

He makes the statement, the law is simple.

It says aggravating factors outweigh mitigating, and then how do those factors line up?

Well, the facts of the case showing the violence, et cetera... that's on the aggravating side.

And then against that, defendant really has nothing except newborn Christianity and the fact that he's 28 years old.

So that... in that final word to the jury, the prosecutor seems to be saying, yes, they have mitigating factors, but they're insubstantial, 28 years old and the claim that he's a newborn Christian.

Mr. Gits: It'll be up to this Court to make a determination as to where the prosecutor was going and whether or not this constitutes a concession that... that the jury could consider the evidence.

I... our position is that viewed as a whole, he did not go to that.

Certainly he permitted the jury, and he did address the issue of if the jury does consider that.

He premised it by saying, I don't think this is relevant, but if... and I'm paraphrasing here.

But if you think it's relevant, it's still not entitled to weight.

If the issue before this Court is whether or not there's a reasonable likelihood that the jury considered that evidence, then given the context of that statement, I don't think the jury can hardly be satisfied that the prosecutor in fact gave in and agreed that Payton's evidence--

Justice Breyer: Do... do we have a transcript of that hearing here?

Mr. Gits: --Of what hearing, Your Honor?

Justice Breyer: Well, the penalty phase.

I mean--

Mr. Gits: Yes.

Justice Breyer: --one way... if I'm having trouble, I'll just read it.

Mr. Gits: It is in the... in the joint appendix, the entire--

Justice Breyer: The whole thing.

Mr. Gits: --Yes, the entire penalty evidence and all argument and the instructions is in there.

And that's... unless the Court has any additional questions, I have nothing further.

Thank you.

Justice Stevens: Thank you, Mr. Gits.

Ms. Cortina, you have a little over 5 minutes left.

Rebuttal of Andrea N. Cortina

Mr. Cortina: Justice Stevens, the real inquiry is whether the California Supreme Court's decision was objectively unreasonable.

It is not whether there was a reasonable likelihood.

And Payton, like the Ninth Circuit... Payton's counsel--

Justice Kennedy: Could you help me on that?

I thought it was two steps.

I thought the question is whether there's a reasonable likelihood that the jury was misled, and then you have to ask whether it was unreasonable for the State supreme court to conclude that there was that reasonable likelihood.

Or correct me if I'm wrong.

Mr. Cortina: --That is one way of approaching the case, but I think under AEDPA, what you'd look at, which would be the more appropriate way, is how the California Supreme Court analyzed the claim and not first conduct a de novo review about whether there was a reasonable likelihood.

I don't think that in the end that there's much difference--

Justice Kennedy: But you can't overturn it on habeas unless there's a reasonable likelihood.

Mr. Cortina: --Right.

That would be... right.

You would have to find that the... you would have to find an error and one that was objectively... and then the California Supreme Court objectively unreasonable in not finding the error.

This is true.

So obviously the reasonable likelihood test is a... is a relevant inquiry, but it is not the inquiry.

And I think that... that that's what Payton's argument demonstrates and the Ninth Circuit's analysis demonstrates, is that they are effectively equating a decision that the California Supreme Court's conclusion was incorrect with their personal... in their subjective opinion with a... with the standard that the decision must be objectively unreasonable.

And in this case, the California Supreme Court's decision was manifesting not objectively unreasonable.

We know... we... we know that objectively unreasonable doesn't have a clear definition.

We do have an example of what is objectively unreasonable, and that was cited in Payton's brief and that is a failure to consider particular facts or relevant law.

And we know that that didn't occur in this case.

The very argument and facts that Payton insists were not considered by the California Supreme Court in applying Boyde... it's not in the majority opinion... are found within Justice Kennard's dissent.

So we have no question that the California Supreme Court identified the correct case and the correct principles within the case and considered all the necessary facts.

And that should make this decision subject to deference under AEDPA.

This Court last term provided additional guidance on how to assess the range of reasonable judgment through the lens of AEDPA in Yarborough v. Alvarado.

And one of the things that the Ninth Circuit and Payton's analysis keeps overlooking is the... Boyde's specific holding concerning factor (k).

And when you analyze the... the range of reasonable judgment of the California Supreme Court concerning factor (k), the specific rule of factor (k), the... the range of reasonable judgment was less.

The California Supreme Court had little to no leeway to conclude otherwise.

Boyde's holding is broad.

Boyde held that factor (k) was a broad, catchall mitigation instruction that allowed for any other circumstance that counseled a sentence less than death and specifically found that background and character fell within the ambit of factor (k).

And no decision of this Court or the California Supreme Court in analyzing character has ever drawn a distinction between post-crime and pre-crime character evidence--

Justice Breyer: There's a footnote in Boyde that seems to draw that distinction.

Mr. Cortina: --The footnote in Boyde actually supports more California's position that factor (k) encompasses any other circumstance that would counsel a sentence less than death as opposed to the Ninth Circuit and Payton's interpretation that factor (k) is limited to the crime.

In both the first part of footnote 5, the... the... Chief Justice Rehnquist rejects the dissent's argument that the gravity of the crime focused the consideration to the circumstances of the crime.

Rather, it allowed the jury to assess the seriousness of what the defendant has done in light of what's the appropriate punishment, and that involves a consideration of the defendant's background and character.

And then the last part of footnote 5 expressly recognizes that factor (k) allows for consideration of good character evidence, and good character evidence is only relevant to a decision about whether the person should live or die, not to circumstances related to the crime.

And good character evidence under Payton and the Ninth Circuit's interpretation of factor (k) would not and could not, whether it existed pre or post-crime, fall under the meaning of factor (k).

So the footnote 5 actually bolsters the ultimate broad interpretation that the California Supreme Court adopted when it applied Boyde... Boyde's specific holding concerning factor (k) to the analysis of Payton's claim.

And although they did, in footnote 5, distinguish the fact that it did not involve post-crime evidence in mitigation, it didn't decide the question.

It was simply noting a fact that distinguished the case from Skipper.

And... and AEDPA requires that we follow the holdings of the Court and not dicta.

So when we start--

Justice Stevens: Thank you, Ms.... go ahead and make one more sentence.

Mr. Cortina: --The California Supreme Court's decision was a reasonable application of Boyde and the Ninth Circuit's reversal of it is... and this Court should--

Justice Stevens: I think we understand you.

Mr. Cortina: --Exactly.

Thank you.

[Laughter]

Justice Stevens: Thank you.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The Oyez Project

Featured:

Roper v. Simmons - Oral Argument

Fri, 09 Jan 2009 14:49:02 +0000

Case:

Roper v. Simmons

Media File:

03-633_20041013-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James R. Layton

Chief Justice Rehnquist: We'll hear argument now in No. 03-633, Donald Roper v. Christopher Simmons.

Mr. Layton.

Mr. Layton: Mr. Chief Justice, and may it please the Court:

Though bound by Stanford v. Kentucky, the Missouri Supreme Court rejected both its holding and its rationale.

This Court should stay the course it set in Stanford, leaving in the hands of legislators a determination as to the precise minimum age for capital punishment within the realm of Thompson v. Oklahoma, and leaving to jurors responsibility for determining the culpability of individual defendants above that minimum age.

The Missouri court justified its departure from Stanford on Atkins v. Virginia, but the result it reached is quite different from the result in Stanford.

In that... excuse me... in Atkins.

In that case, the Court was addressing mental ability, itself a component of culpability.

The Court announced a principle based on that characteristic, that is, that the mentally retarded are not to be eligible for capital punishment, but then it left to the States the determination of the standard and the means of implementing that principle.

The Missouri Supreme Court, by contrast, jumped beyond the question of maturity, which is an element of culpability analysis, to the arbitrary distinction of age.

It drew a line based purely on age, which is necessarily over-inclusive, and then it gave that line constitutional status, thus depriving legislators and juries of the ability to evaluate the maturity of 17-year-old defenders.

Justice Scalia: Well, we didn't leave it up to the States entirely.

I mean, you... you mean the States could adopt any definition of mental retardation they want?

Mr. Layton: No.

The States certainly--

Justice Scalia: So there's... there's some minimal level of mental retardation.

Right?

Mr. Layton: --There is some minimal level.

Justice Scalia: And isn't that necessarily over-inclusive, just as picking any single age is necessarily over-inclusive?

Mr. Layton: No.

Justice Scalia: Surely there will be some people who... who, although they have that level of mental retardation, with regard to the particular crime in question, are deserving of the death penalty.

Mr. Layton: I... I don't agree that it would be over-inclusive, given the Court's analysis in Atkins.

The Court said that someone who has that level of mental retardation is simply not sufficiently culpable by definition.

That certainly would not be true here.

There are 17-year-olds who are equally culpable with those who are 18, 20, 25, or some other age.

Justice Ginsburg: But the age 18 is set even for such things as buying tobacco.

The... the dividing line between people who are members of the community, the adult community, is pervasively 18, to vote, to sit on juries, to serve in the military.

Why should it be that someone is death-eligible under the age of 18 but not eligible to be an adult member of the community?

Mr. Layton: I think that legislators would be surprised, when they adopted those statutes, that they were affecting their criminal law.

In fact, many of those statutes have individualized determinations, the military being one of them.

17-year-olds can enlist.

There is an individualized determination, albeit by parents, not the Government.

17-year-olds may be serving in Iraq today.

That... the other kinds of examples that you cite, for example, tobacco--

Justice Ginsburg: But with parental... they are wards of their parents.

Mr. Layton: --Yes.

Justice Ginsburg: So their parents... the same thing with marriage.

A 17-year-old can marry but not without parental consent.

Mr. Layton: Although in most instances can marry if they go to a court and demonstrate they are sufficiently mature, again contemplating individualized determination, which the Missouri Supreme Court says does not exist as to 17-year-olds with regard to capital punishment.

Justice Scalia: Why pick... why pick on the death penalty?

I mean, if you're going to say that somehow people under 18 are juveniles for all purposes, why... why just pick on the death penalty?

Why... why not say they're immune from any criminal penalty?

Mr. Layton: Well, I... I must assume that if we... if the Court says they are immune from the... from capital punishment that someone will come and say they also must be immune from, for example, life without parole.

Justice Scalia: I'm sure that... I'm sure that would follow.

I... I don't see where there's a logical line.

Mr. Layton: No.

The... the problem with adopting the... the 18-year-old line is that it is essentially arbitrary.

It's the kind of line that legislators and not courts adopt.

Chief Justice Rehnquist: But didn't... didn't we adopt a 16-year-old line in our earlier case?

Mr. Layton: In... in Thompson, the Court in a 4-1-4 decision struck a 15-year-old... a 15-year-old execution, and the States have taken, including Missouri through its General Assembly, have taken that to mean that there is a 16-year-old line.

And today, in fact, I think it's true that there is a consensus nationally with regard to the 16-year-old line, not because it has some biological or psychological magic, but because perhaps--

Justice O'Connor: Well, but... but there was... it's about the same consensus that existed in the retardation case.

Mr. Layton: --Absolutely, that's true.

If you look at the... the--

Justice O'Connor: And... and so are we somehow required to at least look at that?

I mean, the statistics of how many States have approved 18 years as the line is about the same as those in the retardation case.

Mr. Layton: --The... the Court has kind of three groups of cases with regard to the number of States.

On one extreme, are Enmund and Coker where you have three and eight States.

On the other extreme, are Penry and Stanford where you have 24 and 34 States.

And then there's this middle group, which isn't just Atkins and this case.

It's also Tison, which is also almost exactly the same number.

The Court in Atkins had to find a way of distinguishing Tison, to the extent the Court relied on that... that counting process, and the... the Court concluded that there was kind of an inexorable trend with regard to the mentally retarded.

We don't have that kind of trend here.

In--

Justice Souter: Well, we... we have a different kind of trend.

What do you make... you spoke of a consensus, but what do you make of the fact that over the last, I guess, 10 or 12-year period, the actual imposition of the death penalty for... for those whose crimes were... were under 18 has... has steadily been dropping.

I think 10 years ago, there were 13.

Last year, I... I think the figures were that there were two.

The... the consensus seems to be eroding, and yet as... as the counsel on the other side pointed out, this has been occurring at a time when... when treating juvenile crime seriously has not, in fact, been eroding at all.

What... what are we supposed to make of that?

Mr. Layton: --Well, two things.

Number one is that capital sentences have been dropping for all ages, not just for those under 18.

So it... you have to take that into account.

The second is that although the last--

Justice Souter: Has... has the... has the rate of attrition been the same?

Mr. Layton: --It is--

Justice Souter: 13 to 2 is pretty spectacular.

Mr. Layton: --It is not--

Justice Souter: I don't think we've seen that, or maybe we have seen that, for... for death imposition generally.

Is that so?

Mr. Layton: --It is certainly greater, but part of the problem is we're dealing with such small numbers for the... the juveniles, those under 18, that the difference of one or two makes a huge difference in how the numbers come out.

But if you look over the last 10 years, in fact, it has gone up and down and currently is in a down trend, but the down trend--

Justice Souter: Well, it went up once I think, didn't it?

Mr. Layton: --It... it went up once within... since... since Stanford and then came back down.

Now, whether this... this period in which it comes back down is going to remain that way or whether we'll go back up to where we were 10 years ago I don't know.

That's entirely hypothetical to suggest that... that this very recent trend is more dispositive than the trends over the last 10 years.

Justice Souter: So... so you're basically--

--You're... you're basically saying that the... the time is too short, the numbers are too small--

Mr. Layton: Right.

Justice Souter: --to infer anything.

Mr. Layton: Right, and the time is too short on the legislative side as well.

We're only talking about the States that have adopted new legislation having done so, one of them in 1999 and the others simply in 2002 and 2004.

If we were to look at the history of... of capital punishment in the United States, there are many times when States have abolished capital punishment and then returned.

And Justice--

Justice Kennedy: You... you were in the midst of telling us why the... there is a consensus now that it's inappropriate to execute anyone under 16, and I... I... you weren't--

Mr. Layton: --No.

It--

Justice Kennedy: --You couldn't finish that answer.

I want to know it.

Mr. Layton: --Since... since Stanford, we have had no executions under 16 even though it is possible to read Justice O'Connor's opinion in that case as allowing a State to adopt a statute that specifically says 15.

No one has tried that.

Everyone seems to have taken Thompson and Stanford together to mean there is a 16-year-old line.

Two States have adopted 16 by statute.

Justice Kennedy: And... and so you say there's... there's not so much as a consensus as an understanding of what that decision means.

Mr. Layton: I... I think that that's right.

There are States that have adopted it specifically and others have simply implemented it.

If I were a prosecutor today, I... it's hard to imagine that I would... even in a State where I could find a statute saying I could prosecute someone under age 16, that I would try such a thing.

Justice Kennedy: Let... let me ask you this.

I... I don't yet have the... the record showing the full closing argument of... of both sides, but we do have the portion where the prosecutor says, isn't this scary?

Can adolescence ever be anything but mitigating?

Mr. Layton: I... I don't know how it could be anything but mitigating.

But what we have in that--

Justice Kennedy: But that's not how the prosecution presented it to the jury.

Mr. Layton: --In that statement, but--

Justice Kennedy: He said... he... he almost made it aggravating.

Isn't that scary?

I don't have the... I don't have the full argument.

Mr. Layton: --No.

What... what he's facing is... is 18 pages of transcript that occupied the... the defense counsel's argument.

Of those 18 pages, 4 pages are dedicated purely to Mr. Simmons' youth, and throughout the rest of the argument, he uses terms to reinforce that.

He refers to him repeatedly as a 17-year-old.

He calls him a kid.

He does things to reinforce with the jury that he's very young.

So then we come back and in a few pages of rebuttal, we have a couple of words... I shouldn't say that... two sentences in which the prosecutor is trying to respond to that particular lengthy theme and argument.

Justice Ginsburg: It was pretty clear.

The... the words in question were: Think about age.

17 years old.

Isn't that scary?

Doesn't that scare you?

Mitigating?

Quite the contrary I submit.

Quite the contrary.

Mr. Layton: And if we were here because Mr. Simmons said that was improper and the Missouri Supreme Court said that was improper, well, we wouldn't be here.

We wouldn't have asked for certiorari.

The Court wouldn't have granted it.

Justice Ginsburg: But the question is, can... is... is age, youth inevitably mitigating, and here is a prosecutor giving the answer no, it can be aggravating.

Mr. Layton: The Missouri statute requires that an instruction be given that says that age is a mitigator, and the... the instruction was given here.

And the jury heard argument concerning that particular claim.

Justice Scalia: Well, what's... what's the--

Justice Kennedy: Well, that's somewhat--

Justice Scalia: --What is the contrary of... of mitigating?

I... I would assume--

Mr. Layton: Aggravating, but aggravating--

Justice Scalia: --Is it?

I... I would assume it's not mitigating.

Mr. Layton: --Well, you're right, Your Honor, because--

Justice Scalia: Maybe the opposite of mitigating is aggravating, but it... it's perfectly good English to say, mitigating?

Quite the contrary--

Mr. Layton: --It is--

Justice Scalia: --It's not at all mitigating.

Mr. Layton: --Yes.

And... and--

Justice Scalia: So I don't know why you give that one away.

Mr. Layton: --Certainly aggravating circumstances are defined in the Missouri statute, and they were defined in the instructions.

So this was not to be considered by the jury as an aggravator.

Justice Kennedy: --Let... let's focus on the word unusual.

Forget cruel for the moment, although they're both obviously involved.

We've seen very substantial demonstration that world opinion is... is against this, at least as interpreted by the leaders of the European Union.

Does that have a bearing on what's unusual?

Suppose it were shown that the United States were one of the very, very few countries that executed juveniles, and that's true.

Does that have a bearing on whether or not it's unusual?

Mr. Layton: No more than if we were one of the very few countries that didn't do this.

It would bear on the question of unusual.

The decision as to the Eighth Amendment should not be based on what happens in the rest of the world.

It needs to be based on the mores of... of American society.

Justice Scalia: Have the countries of the European Union abolished the death penalty by popular vote?

Mr. Layton: I don't know how they've done that, Your Honor.

Justice Scalia: I thought they did it by reason of a judgment of a court--

Mr. Layton: Well, in fact--

Justice Scalia: --which required all of them to abolish it.

Mr. Layton: --I... I believe that--

Justice Scalia: And I thought that some of the public opinion polls in... in a number of the countries support the death penalty.

Mr. Layton: --I believe that there are countries in Europe who abolish it because of their membership in the European Union--

Justice Kennedy: I... I acknowledged that in... in my question.

I recognize it is the leadership in many of these countries that objects to it.

But let us... let us assume that it's an accepted practice in most countries of the world not to execute a juvenile for moral reasons.

That has no bearing on whether or not what we're doing is unusual?

Mr. Layton: --I... I can't concede that it does because it's unimaginable to me that we would be willing to accept the alternative, the flip side of that argument.

It does seem to me, however, that that goes to a particular... back to the aspect where I began--

Justice Breyer: Is there... is there any on... on that?

Is there any indication?

I mean, I've never seen any either way, to tell you the truth, but... that Madison or Jefferson or whoever, when they were writing the Constitution, would have thought what happened elsewhere, let's say, in Britain or in the British... they were a British colony.

They did think Blackstone was relevant.

Did any... that they would have thought it was totally irrelevant what happened elsewhere in the world to the word unusual.

Is there any indication in any debate or any of the ratification conventions?

Mr. Layton: --Nothing that I have seen has suggested that--

Justice Breyer: So if Lincoln--

Mr. Layton: --one way or the other.

Justice Breyer: --Abraham Lincoln used to study Blackstone and I think he thought that the Founding Fathers studied Blackstone, and all that happened in England was relevant, is there some special reason why what happens abroad would not be relevant here?

Relevant.

Mr. Layton: There's a--

Justice Breyer: I'm not saying controlling.

Mr. Layton: --There's a special reason why Blackstone would be relevant because that was the law from which they were operating when they put this language into the Constitution.

Justice Breyer: Absolutely, and they, I guess, were looking at English practices, and would they have thought it was wrong to look abroad as a relevant feature?

Mr. Layton: And... and I don't know the answer to that, Your Honor.

Justice Kennedy: Do we... do we ever take the position that what we do here should influence what people think elsewhere?

Mr. Layton: I... I have not seen that overtly in any of the Court's opinions, Your Honor.

Justice Scalia: You... you think--

Justice Kennedy: You... you thought that Mr. Jefferson thought that what we did here had no bearing on the rest of the world?

Mr. Layton: Oh, I... I think Mr. Jefferson thought that.

I think many of the Founders thought that they were leading the world, and I have no objection to us leading the world, but Mr. Jefferson's lead of the world was through the legislature not through the courts.

Justice Ginsburg: But did he not also say that to... to lead the world, we would have to show a decent respect for the opinions of mankind?

Mr. Layton: That... that may well be.

Justice Scalia: --What did John Adams think of the French?

[Laughter]

Mr. Layton: I read a biography of John Adams recently.

I recall that he didn't think highly of them.

[Laughter]

The... Missouri, in order to implement the principle that those who are immature should not be subject to capital punishment, has adopted an approach that, first off, excludes anyone age 16 and under from capital punishment; second, requires certification by the juvenile court for anyone who is 16, but otherwise turns the matter over to the jury and defines it as a statutory mitigator.

The kind of evidence that is discussed in Mr. Simmons' brief at some length could have been applied... could have been presented during the penalty phase of Mr. Simmons' trial.

It has been reflected in decisions of this Court as far back as Eddings where there was evidence of mental and emotional development.

In Penry, there was evidence of mental age and social maturity.

And here, in the post-conviction proceeding, Mr. Simmons presented such evidence regarding his impulsivity, his susceptibility to peer pressure, and his immaturity.

But he didn't present that at trial.

There is a mechanism in Missouri for him to do that and he chose not to.

Justice Breyer: Before you go off on this, the one statistic that interested me... and I'd like you to discuss its relevance really... is if we look back 10 years, I have only three States executing a juvenile: Texas, 11; Virginia, 3; and Oklahoma, 2.

Mr. Layton: Correct.

Justice Breyer: And those three States account for about 11 percent of the population of the country, 11.3 percent.

Now, if we go back a few more years to Stanford, we get three others in there: Louisiana, 1; Georgia, 1; and Missouri, 1.

Mr. Layton: And if you go to the convictions rather than the executions, then Alabama goes into that mix.

Justice Breyer: We have a very different number.

Mr. Layton: Right.

Justice Breyer: So the reason that I thought arguably it's more relevant to look at the convictions is there are a lot of States.

Say, New Hampshire, I think, for example... when I was in the First Circuit, there were several States that on the books permitted the death penalty, but nobody ever had ever been executed.

And... and that's true across the country.

There are a number of States like that.

So if we look at the States that actually execute people, it's 10 years, say, 11 percent of the population are in such States.

You go back 15 years, and you get these three other States, which raises the percentage.

How... how should I understand that?

I'm interested in both sides--

Mr. Layton: Frankly, we don't know what those numbers mean because we don't know to what extent juveniles are committing capital level murders.

We... and there is no way in current social science to make that determination.

It's interesting that among the three States... two of the three States that are on that list that Justice Breyer mentioned are States in which there is a specific instruction to the jury, or indeed, in Texas, a requirement, that the jury evaluate future dangerousness.

That is, the argument that was referred to by opposing... or that counsel made, the State's counsel made, the prosecutor made, in the... in the trial here, there's actually an instruction in some of those States.

And that may play into the manner in which this... those States... the reason those States have additional convictions and additional executions.

But Missouri doesn't have that.

We don't require that the jury find future dangerousness, and although that may come up in the course of a mitigation and aggravation argument in the penalty phase, it isn't highlighted like it is in those States.

And that may be more problematic than the system that Missouri has created.

If the kind of evidence, psychosocial evidence, that is cited in Mr. Simmons' brief had been presented at the penalty phase, of course there would have been an opportunity to rebut it, to question it.

Instead, what we have in this case is the marshaling of untested evidence from various cause groups and some dispassionate observers.

Chief Justice Rehnquist: At what point was this inserted into the record, Mr. Layton?

Mr. Layton: The... the kind of... well, as to Mr. Simmons specifically, it came in in the post-conviction proceeding, and then was also present in the habeas record.

In this case, the... the lengthy litany of scientific studies appeared for the first time in his brief in this Court.

There were references to a few of them before, but nothing--

Chief Justice Rehnquist: It was never... never tested in the trial court.

Mr. Layton: --Oh, no.

Oh, no, because he never made the argument in the trial court during his trial that... that scientifically he was too immature to be culpable to the degree that would merit capital punishment.

Justice Souter: Well, at least to the extent that he's simply quoting public sources, you had a chance to quote public sources in... in return.

Mr. Layton: Absolutely.

Justice Souter: So I think you're... you're even on that--

Mr. Layton: Absolutely.

Justice Souter: --or at least your opportunity is.

Mr. Layton: I... and I think the reason that we did that and we cited the difficulties in our reply brief with what he cited is to highlight that the precise age is a legislative question based on legislative type facts.

Legislatures can evaluate this series of studies and then pick what is essentially an arbitrary age.

There is no study in anything that Mr. Simmons cites that... that justifies that particular day, 18.

They talk about adolescence.

They talk about young adolescence, old adolescence.

They talk about adolescence continuing until the mid-20's.

Nothing justifies the age of 18.

That makes it the kind of fact that a legislature ought to be evaluating, not a court.

Justice Scalia: Does adolescence as a scientific term... does it always occur on the same day for... for all individuals?

Mr. Layton: No.

The... the studies point out that adolescence is... well, they don't agree on what adolescence means, and they don't... and they point out that it begins and ends on different times for different people.

So we don't know what adolescence means in the studies, and we don't know what it would mean were the Court to base a decision on the... this concept of adolescence.

I'd like to reserve the rest of my time, if there are no other questions.

Argument of Seth P. Waxman

Chief Justice Rehnquist: Very well, Mr. Layton.

Mr. Waxman, we'll hear from you.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

Everyone agrees that there is some age below which juveniles can't be subjected to the death penalty.

The question here is where our society's evolving standards of decency now draw that line.

15 years ago, this Court found insufficient evidence to justify a bright line at 18, but since Stanford, a consensus has evolved and new scientific evidence has emerged, and these developments change the constitutional calculus for much the same reasons the Court found compelling in Atkins.

As was noted--

Justice Scalia: Can the constitutional calculus ever move in the other direction?

I mean, once we hold that, you know, 16 is the age, if there's new scientific evidence that shows that some people are quite mature at 18 or at... at 17-and-a-half or if... if there is a... a new feeling among the people that youthful murderers are, indeed, a serious problem and... and deterrence is necessary, can we ever go back?

Mr. Waxman: --Well, there is a--

Justice Scalia: It's sort of a one-way ratchet.

Isn't it?

Mr. Waxman: --There is a one-way ratchet here as there is whenever this Court draws a constitutional line; that is, whenever this Court determines that the Constitution preempts the ability of legislatures to make--

Chief Justice Rehnquist: Well, but what... what if a State legislature decides that, sure, the Supreme Court said in the Simmons case that you can't execute anybody under 18, but we think there's kind of a tendency the other way, we're going to pass a statute and see what happens in court?

Mr. Waxman: --Well, you could... you could have, I guess, what I refer to as the Dickerson v. United States phenomenon.

It could come up.

But what's... what's really interesting... I think what's--

Chief Justice Rehnquist: Is it... is that a closed book?

I mean, granted, you may lose the argument, but is it a permissible argument that the standards have evolved the other way?

Mr. Waxman: --It... it certainly would be a permissible... permissible argument.

What's... what's notable here, Justice Scalia and Mr. Chief Justice, is how robust this consensus is.

We're talking not only about the whole variety of ways in which our society has concluded that 18 is the bright line between childhood and adulthood and that 18 is the line below which we preserve... presume immaturity.

But the line with respect to executions, the trend is very robust and it is very deep.

Justice Scalia: We don't... we don't use 18 for everything.

Aren't there States that... that allow adolescents to drive at the age of 16?

Mr. Waxman: There are nine States that allow adolescents to drive at the age of 16 without their parents' consent.

That... driving, of course, is the classic example, but--

Justice Scalia: With their parents' consent--

Chief Justice Rehnquist: Right.

Justice Scalia: --With their parents' consent, how many?

Mr. Waxman: --To... to... there are 41 States that require parental consent below 18.

Justice Scalia: But they can drive.

Mr. Waxman: But they can drive if their parents agree.

My... my--

Justice Scalia: If it's okay with the parents, it's okay with the State.

Mr. Waxman: --My point here is that with respect to the death penalty, we have a substantial consensus within the United States, as it happens, exactly the same lineup as existed in... as existed in... was true in Atkins.

We have not just a worldwide consensus that represents the better view in Europe.

There are 194 countries--

Chief Justice Rehnquist: Well, how does one... how does one determine what is the better view?

Mr. Waxman: --I was... I was referring to the implication that it has often been said that because the European Union thinks something, we should, therefore, presume that the world views it that way.

We're now talking about--

Chief Justice Rehnquist: Are you suggesting that we adopt that principle?

Mr. Waxman: --To the contrary.

My point is we are not talking about just what a particular European treaty requires.

We... the... the eight States that... that theoretically... that have statutes that theoretically permit execution of offenders under 18 are not only alone in this country, they are alone in the world.

Every country in the world, including China and Nigeria and Saudi Arabia and the... and the Democratic Republic of the Congo, every one has agreed formally and legislatively to renounce this punishment, and the only country besides the United States that has not is Somalia, which as this Court was reminded yesterday, has no organized government.

It is incapable--

Justice Scalia: They have a lot of customs that we don't have.

They don't allow most... almost all of them do not allow... have trial by jury.

Should we... and they think it's not only more efficient, it is fairer because juries are, you know, unpredictable and whatnot.

Should we yield to the views of the rest of the world?

Mr. Waxman: --Of course not, but this is a... this is a standard which... a constitutional test that looks to evolving standards of moral decency that go to human dignity.

And in that regard, it is... it is notable that we are literally alone in the world even though 110 countries in the world permit capital punishment for one purpose... for one crime or another, and yet every one... every one formally renounces it for juvenile offenders.

And, Justice Kennedy, my submission isn't that that that's set... you know, game, set, and match.

It's just relevant, and I think it is relevant in terms of the existence of a consensus.

There was reference made by my opponent to the fact that there are four States that set the age at 17 and four States that set the age at 16.

No... in terms of movement, no one has suggested that any of those States or any other State has ever lowered the age.

In fact, if you look at those particular... those eight States, a number of them legislated an age that represented raising the number over what had previously been permitted.

The movement, as this Court addressed, talked about in Atkins, has all been in one direction, and it's not as if that movement, in and of itself, answers the question.

But where you have the type of consensus that exists here, as it did in Atkins, and where you have a scientific community that in Stanford was absent... the American Medical Association, the American Psychological Association, the American Psychiatric Association, the major medical and scientific associations, were not able in 1989, based on the evidence, to come to this Court and say there is scientific, empirical validation for requiring that the line be set at 18.

Justice Kennedy: Well, in fact, the American Psychological Association is not your brief.

You're not accountable for inconsistencies there.

But I... I would like your comment.

They came to us in Hodgson v. Minnesota, as I think the State quite correctly points out, and said that with reference to the age for determining whether the child could have an abortion without parental consent, that adults... that they... that they were risk... that they could assess risk, that they had rational capacity, and they completely flip-flop in this case.

Mr. Waxman: Well--

Justice Kennedy: Is that just because of... is that just because of this modern evidence?

Mr. Waxman: --No, no, no.

I don't... I think it's... it may be in small part to that, Justice Kennedy, but I think the main point is that what their brief looked to... what the argument was was our... are adolescents cognitively different than adults.

And the answer is, as we... our brief concedes, is generally no.

And what was at issue in the abortion cases was competency to decide.

And just as we allow the mentally retarded the ability to decide whether or not to obtain an abortion but not to be subject to a penalty that is reserved for the tiny fraction of murderers that are so depraved that we call them the worst of the worst, here competency to decide here, as with the mentally retarded, isn't the issue.

Christopher Simmons was found, beyond a reasonable doubt, to have committed this offense with the specific intent necessary to do it, just as the mentally retarded can be.

The issue in Hodgson was cognitive ability to be able to make a competent decision.

And so I don't... I didn't represent the APA then and I don't now, but I don't, with respect, think there's an inconsistency.

In fact, the difference here goes to the factors that Atkins identified about why overwhelmingly the mentally retarded... and here adolescents... are less morally capable.

They are much, much less likely to be sufficiently mature to be among the worst of the worst.

And here, even more than with the mentally retarded, the few 16 and 17-year-olds who might, if we could even determine it, be... we could determine were in fact so depraved that they were among the worst of the worst, there is no way reliably to identify them and there's no way reliably to exclude them.

And it is in this respect that science I think changes.

At the time of Stanford, everybody on this Court, of course, knew what all of us as adults intuitively know, which is that adolescents... and... and here we're talking about... I agree that when adolescence starts and when it ends is undefined.

But every scientific and medical journal and study acknowledges that 16 and 17-year-olds are the heartland.

No one excludes them.

And what we know from the science essentially explains and validates the consensus that society has already developed.

Justice Scalia: If all of this is so clear, why can't the State legislature take it into account?

Mr. Waxman: Well, one could have said--

Justice Scalia: I mean, if it's such an overwhelming case that... that we can prescribe it for the whole country, you would expect that the number of States that... that now permit it would not permit it.

All you have to do is bring these facts to the attention of the legislature, and they can investigate the accuracy of the studies that the American Psychological Association does or other associations in a manner that we can't.

We just have to read whatever you put in front of us.

Mr. Waxman: --Justice Scalia, the number of States that engage in these executions is very small, and if it were all of the States, none of this Court's Eighth Amendment jurisprudence would ever have to come... would ever have to be developed.

But--

Justice Scalia: But that's precisely because the jury considers youthfulness as one of the mitigating factors.

It doesn't surprise me that the death penalty for 16 to 18-year-olds is rarely imposed.

I would expect it would be.

But it... it's a question of whether you leave it to the jury to evaluate the person's youth and take that into account or whether you adopt a hard rule that nobody who is under 18 is... is... has committed such a heinous crime with such intent that he... that he deserves the death penalty.

Mr. Waxman: --Justice... Justice Scalia, there's no doubt... and the jury was instructed... that age is a mitigating factor although, Justice Kennedy, in response to your question, our brief points out prosecutors, in the context of future dangerousness, which is relevant, argue it all the time and jurors intuitively think it all the time.

But the fact that he could have made an individualized mitigating case or argued that he was only... that he was young, as he did, doesn't address the constitutional problem.

The constitutional problem is that overwhelmingly 16 and 17-year-olds, for reasons of the... the developmental reasons relating to their psychosocial character--

Chief Justice Rehnquist: Well, Mr. Waxman, was that in evidence that you referred to from these various associations?

Was that introduced at trial?

Mr. Waxman: --The... about the character--

Chief Justice Rehnquist: Yes.

Mr. Waxman: --No.

The trial was... I'm making an observation just as in... as in Atkins--

Chief Justice Rehnquist: Well, but I... I would think if you want to rely on evidence like that, it ought to be introduced at trial and subject to cross examination rather than just put in amicus briefs.

Mr. Waxman: --Oh, no, Mr. Chief Justice.

I'm not making an argument about the character or maturity of this defendant, which would have been the only thing that would be--

Chief Justice Rehnquist: No.

But you're making an argument that science says people this age are simply different, and it seems to me you... if that's to be an argument, it ought to be introduced at trial.

Mr. Waxman: --I... I... it's an argument about what the Constitution prohibits.

It's an argument about where a constitutional line should be drawn.

Chief Justice Rehnquist: Well, but you're... you're talking facts basically and facts ordinarily are adduced at trial for cross examination.

Mr. Waxman: Well, I am not aware of any instance in which legislative facts, as you will call them, that is, facts that go to where a line should be drawn, whether it's by this Court because the Constitution ought to be so interpreted or a legislation should change, would be properly introduced to a jury that is supposed to accept the law, that has required to accept the law as is given by a judge--

Chief Justice Rehnquist: Well, how about in the... how about in the habeas proceeding?

Mr. Waxman: --In the habeas proceeding, it's... it's... an argument could have been made and, indeed, was made in this case that the line... that under Atkins juvenile offenders are the same and--

Chief Justice Rehnquist: Well, was this evidence adduced at the habeas proceeding?

Mr. Waxman: --The habeas... if you're talking about the... the scientific studies--

Chief Justice Rehnquist: Right.

Mr. Waxman: --in peer-reviewed journals, it was not.

Justice Kennedy: Well... well, surely at the trial, you could have had a psychiatrist testify to all the things that are in your... in your brief, and in fact the... it would be another argument, but maybe the... maybe the finding was deficient on that ground as well.

Mr. Waxman: Well, we certainly could have had a psychiatrist argue that in... generally speaking, adolescents are less mature and on a range of psychosocial factors, they--

Justice Kennedy: Well, he could have cited all the... all the authorities you cite in your brief.

Mr. Waxman: --Right.

But, Justice Kennedy, I... I concede that.

The issue for this Court is whether the Constitution requires that as a matter of law, not as a matter of the application of law to a particular defendant, the line has to be drawn this way, and--

Justice Kennedy: Suppose... suppose that all of the things set forth in your brief were eloquently set forth by a psychiatrist to the jury.

Could the jury then weigh these things that you're telling us?

Mr. Waxman: --The jury could have weighed these things, but there is no way, even for a psychiatrist or a psychologist, much less a juror to... to be confident because of the inherent, documented transiency of the adolescent personality.

No psychiatrist and no juror can say with confidence that the crime that was committed by a 16 or 17-year-old, on the average 2 years ago... and this is the key point... proceeded from enduring qualities of that person's character as opposed to the transient aspects of youth, and therefore--

Chief Justice Rehnquist: But now, that... that itself is a purported scientific fact, what you just said, and it seems to me if we're... if we're to rely on that, it ought to have been tested in the way most facts are.

Mr. Waxman: --What the jury... perhaps I'm not understanding your point.

Chief Justice Rehnquist: Well, you're... you're relying on factual... the statement you just made was... was a factual statement about the enduring character, et cetera.

Now, if... if we are to take that as a fact, it ought to have been tested somewhere rather than just given to us in a brief.

Mr. Waxman: Well, the... the... an argument to the jury that regardless of what a psychiatrist or a psychologist would have said about Christopher Simmons, as a group, 16 and 17-year-olds have such labile personalities that it is impossible to know whether they're... the crime that they committed reflected an enduring character is an argument that could have been made to spare this particular defendant, but it need not have been credited or given dispositive weight, particularly since at sentencing... and this Court has acknowledged this in cases like Pate v. Robinson and Drope v. Illinois... the jury is evaluating somebody, determining their moral blameworthiness 2 years later.

Justice Kennedy: But... but if you're reluctant to give it dispositive weight in an individual case, then you come in and ask us to give it dispositive weight as a general rule, that seems to me inconsistent.

Mr. Waxman: Well, no.

What I'm... what I'm asking you to do... what I'm suggesting is that the weight of scientific and medical evidence of which the Court can take judicial notice and should take judicial notice and did take judicial notice in cases like Atkins and Thompson and Stanford explains and validates the consensus that society has drawn.

We're not arguing that the science or what a particular neurobiologist or developmental psychologist says dictates the line of 18.

The question is we have a consensus.

It's even more robust than it was in Atkins.

Looking at proportionality and reliability with respect to that consensus, is there a good, objective, scientific reason to credit the line that society has drawn?

And I'm suggesting two things.

Number one, that although one could posit that there are 16 and 17-year-olds whose antisocial traits are characterological rather than transient, we know it is impossible... we know this from common sense and it's been validated by science, of which the Court can take note, that it is impossible to know whether the crime that was committed by a 16 or 17-year-old is a reflection of his true, enduring character or whether it's a manifestation of traits that are exhibited during adolescence.

And--

Justice Kennedy: Well, suppose... suppose I... I were not convinced about your scientific evidence was conclusive and I don't identify a clear consensus.

Do you lose the case, or can you then make the same argument you just made appealing to some other more fundamental principle that Stanford was just wrong?

Mr. Waxman: --Here... no.

Well... no.

Here's what I would appeal to.

I... there are three relevant factors that this Court has to look at.

There's the determination of consensus.

Is there enough of a one or isn't there?

There's the determination of proportionality, and then there's the issue identified in Lockett and in Atkins, which is how reliable is the individualized sentencing process.

How reliably... when we're talking about picking the tiny few who are the worst of the worst, how reliably can we do that?

We think that with respect to each of those, we have demonstrated that the Eighth Amendment requires recognizing 18.

But I will take as a posit your hypothetical question that I haven't convinced you on number one, number two, or perhaps individually on all three.

This is truly a case, Justice Kennedy, in which the whole is greater than the sum of the parts.

Taken together, the fact that it's impossible for a jury to know whether the crime of an adolescent was really the feature of an enduring character, since we know, as in Atkins, that many of the characteristics that manifest themselves in mental retardation also affect the inability of adolescents to communicate with their attorneys, to express remorse, that 2 years later when this person is on trial, physically, emotionally it's not the same person that the jury is looking at and being asked to evaluate--

Justice Breyer: So that... that's... that last point was what I thought the scientific evidence was getting at, that it simply confirmed what common sense suggests, that when you execute a person 15 or sometimes 20 years later, a problem always is that that person isn't the same person who committed the trial in a meaningful sense.

And it's specially true of 16 and 17-year-olds who, observation would suggest, have a lot of changing to do because their personality is not fully formed.

Now, I thought that the... the scientific evidence simply corroborated something that every parent already knows, and if it's more than that, I would like to know what more.

Mr. Waxman: --Well, it's... I think it's... it's more than that in a couple of respects.

It... it explains, corroborates, and validates what we sort of intuitively know, not just as parents but in adults that... that... who live in a world filled with adolescents.

And... and the very fact that science... and I'm not just talking about social science here, but the important neurobiological science that has now shown that these adolescents are... their character is not hard-wired.

It's why, for example... here's a... here's an interesting and relevant scientific fact.

Psychiatrists under the DSM, the Diagnostic and Statistical Manual, which is their Bible, are precluded from making a diagnosis of antisocial personality before the age of 18 precisely because before the age of 18, personality and character are not fixed even with respect to--

Justice Scalia: Mr. Waxman, I... I thought we punish people, criminals, for what they were, not for what they are.

I mean, you know, if you have someone who commits a heinous crime and by the time he's brought to trial and convicted, he's come to Jesus, we don't let him off because he's not now what he was then.

It seems to me we punish people for what they were.

Mr. Waxman: --We--

Justice Scalia: And to say that adolescents change, everybody changes, but that doesn't justify eliminating the... the proper punishments that society has determined.

Mr. Waxman: --I think, with respect, Justice Scalia, I'm not... I think that there is an interesting question about... with respect to death, whether what they are and what they will become is totally irrelevant.

But accepting the premise of your question, my point is that science has confirmed what we intuitively know, which is that when the jury gets around to evaluating what the character was that manifested that horrible crime, they can't tell because of the passage of age and because of a number of confounding factors and because psychologists and psychiatrists can't tell themselves whether the crime that occurred 2 years ago or 2 weeks ago was the manifestation of an enduring character or transient psychosocial traits that rage in adolescence.

Chief Justice Rehnquist: Is part of your answer based on the length of time between the killing and the trial?

Mr. Waxman: Only part, Mr. Chief Justice.

Part of it is that the jury, of course, is looking at the defendant, and we have laid before the Court peer-reviewed scientific studies that show that they... that people are... frequently equate maturity and psychosocial development with race and with physical appearance.

In addition, because the adolescent personality is transient and the lapse of time for trial is 2 years, in a very real sense psychosocially as opposed to... in addition to physically, the person that the jury is judging is not the... is not a manifestation of the person who committed the crime.

Chief Justice Rehnquist: Well, what if... what if a State said I see the problem, so we'll bring this person to trial in 6 weeks?

Mr. Waxman: Even if it were in 6 weeks, Mr. Chief Justice, we believe that the process is... is sufficiently... that would just make the youth the same as the mentally retarded, because the mentally retarded have stable personalities and stable characters, and yet, what this Court said in Atkins was we have two things to say.

One is that overwhelmingly as a group the mentally retarded are unlikely to be among the very worst of the worst, and the very deficits that they have... that you called deficits in reasoning, judgment, and control of their impulses, makes the jury... the process of the jury evaluating the moral culpability, the moral blameworthiness unreliable.

And it's on the basis of those two things that we think that the consensus that's otherwise reflected is validated.

And here--

Justice Kennedy: I have... I have one other question I'd like to ask because it's been troubling me and I want your comment.

A number of juveniles run in gangs and a number of the gang members are over 18.

If we ruled in your favor and this decision was given wide publicity, wouldn't that make 16-, 17-year-olds subject to being persuaded to be the hit men for the gangs?

Mr. Waxman: --Well--

Justice Kennedy: I'm... I'm very concerned about that.

Mr. Waxman: --I... I am also concerned about it, and I... I have thought about this.

First of all, if they are enlisted by people over the age of 18 to do that, the... the precise degree of culpability goes to the people who are over 18, and juries ought to consider whether people who are over the age of 18 have so enlisted them.

But even... but with respect to--

Justice Kennedy: I'm talking about the deterrent value of the existing rule insofar as the 16 and 17-year-old.

If... if we rule against you, then the deterrent remains.

Mr. Waxman: --Well, I think... I think, as with the mentally retarded, or in fact, even more than with the mentally retarded, adolescents... the... the role of deterrence has even less to say, precisely because they weigh risks differently and they don't see the future and they are impulsive and they're subject to peer pressure.

And in fact, if you look at what happened in this case, it's as good an example as any.

The State says, well, okay, you know, he... you know, this guy, according to the State's witness, the person, who was over 18 and described as the Fagin of this group of juveniles, testified to the court, well, Christopher Simmons says, let's do it because, quote, we can get away with it.

Justice Kennedy: Well, there were a number... a number of cases in the Alabama amicus brief, which is chilling reading... and I wish that all the people that sign on to the amicus briefs had at least read that before they sign on to them... indicates that often the 17-year-old is the ringleader.

Mr. Waxman: Well, the 17-year-old may be the ringleader, and even if you posit that Christopher Simmons was the ringleader here, he... he wasn't under any illusions.

He wasn't making a statement about being executed.

He said, we could get away with it, which speaks volumes about the... the extent to which... this guy was subject to life without parole, which is, Justice Scalia, fundamentally different than death.

This Court has said that only when the penalty is death, do you look at the character of the defendant as opposed to the nature of the crime and the act.

But the data shows... and I think this Court has acknowledged... it acknowledged in Thompson in any event... that the... that adolescents like the... the mentally retarded are much less likely to be deterred by the prospect of an uncertain, even if probable, very substantial penalty.

The... no mature adult would have thought, as Chris Simmons reportedly said, I can get away with this because I'm 17 years old, when the mandatory punishment for him would have been life in prison.

It's... it is not... eliminating the death penalty as an option, which is... which is imposed so rarely as to be more freakish than the death penalty was in Furman... three States in the last 10 years, one--

Justice Stevens: But of course, the death penalty was not a deterrent for any of the crimes described in the Alabama brief because those are all... crimes all occurred in States which execute people under 18.

Mr. Waxman: --Yes, and I... and I... the... the examples in the Alabama brief are horrifying.

But if you look at those examples, the very first one, this is a kid who went on a killing spree, including his father, because he felt he was unjustly deprived use of the family truck.

And there... I can go through the other examples, but these are posited as people who a jury could, with a degree of reliability that the Constitution requires, say acted out of a stable, enduring character rather than transient aspects of youth?

I think that's a poster child for us.

Justice Scalia: Whereas if it had been done by an 18-year-old, a jury could have said that.

Mr. Waxman: Well--

Justice Scalia: If an 18-year-old did the same thing, you say, well, he's certainly stable.

Mr. Waxman: --May I answer?

Briefly.

The line... the science shows what common sense understands which is that development is a continuum, but the line, 18, is one that has been drawn by society.

Chief Justice Rehnquist: Thank you, Mr. Waxman.

Mr. Waxman: Thank you.

Rebuttal of James R. Layton

Chief Justice Rehnquist: Mr. Layton, you have 8 minutes remaining.

Mr. Layton: Mr. Simmons, of course, was found by the jury to be the ringleader.

And in essence, that creates a contrast with the Lee Malvo case where we had something like what Justice Kennedy referred to, adults influencing a juvenile, and the jury was able to make that distinction in the Virginia Lee Malvo case.

Justice Stevens: May I ask this question, Mr. Layton?

This case kind of raises a question about the basic State interests that are involved here, and the State interests that justify the death penalty include deterrence and also retribution.

Mr. Layton: Yes.

Justice Stevens: Which, if either, of those do you think is the primary State interest you seek to vindicate today?

Mr. Layton: I... I think that they are of equal weight in the minds of the legislators in the State of Missouri.

The... Mr. Simmons' counsel comes to the edge of asking this Court to--

Justice Stevens: May I just ask one further?

Mr. Layton: --Yes.

Justice Stevens: Is there any evidence that the death penalty for those under 18 or even above has, in fact, had any deterrent value?

Mr. Layton: From all that I have read, the evidence both directions is inconclusive, Your Honor, and thus, subject to legislators' determination.

Mr. Simmons' counsel comes to the edge of asking the Court to elevate proportionality to be equivalent to... to a consensus.

But let me just highlight two aspects of the non-capital case proportionality jurisprudence of this Court.

Justice Kennedy, in... in Harmelin recently cited by the plurality in Ewing, pointed out that two of the considerations in proportionality review in those instances are the primacy of the legislature and the nature of the Federal system.

What we should have here is a principle that is a principle dealing with immaturity, and the States, within the Federal system, should be able to make the determination as to how to implement it.

As pointed out, this Court's jurisprudence in Eighth Amendment areas has proven to be a one-way ratchet, and because of that, the Court has to be very wary of leading rather than reflecting societal norms.

Now, there are some States, of course, that have raised the age, the minimum age, for capital punishment, but at least in some instances, such as Missouri, that is a reaction to this Court's jurisprudence, that is, a reaction to Thompson and Stanford.

Other States have left 18 for other purposes, and yet there still is a role by this Court.

Pornography is an example.

I am confident that but for this Court's First Amendment jurisprudence, the Missouri General Assembly would adopt a statute that said that pornography should not be allowed at ages much higher than 18 and not because of maturity, but because of their opposition to pornography.

In many of the instances cited by Mr. Simmons, the kind of statutes that he cites, gambling and others, it is a compromise in the legislative arena, not necessarily based on maturity or immaturity, that leads to the selection of the age of 18.

Many States have, of course, individualized determinations with regard to those statutes.

There was a discussion of driver's licenses.

In Missouri, of course, we allow people to drive at age 15.

They have to have parental consent, yes, but there also is a test.

That is, there is an individualized determination before we do that, and that's what the State requests here.

Mr. Simmons' counsel points out that in Atkins the Court took judicial notice of psychosocial evidence, and that's true.

The Court did.

But remember that what the Court had before it in Atkins was not a proxy for a... a factor that plays into culpability.

It was, in fact, the factor itself, that is mental capacity.

And what they want here is not a determination as to the maturity or the capacity of individuals.

They want a bright line test that is based purely on age.

This Court should adopt, as it did in Atkins, a principle and leave it to the States to act.

That's what the Court did in--

Justice Stevens: Of course, one... one of the objections in... in Atkins was we needed a bright line test.

We'd have difficulty determining which ones are mentally retarded.

Here we don't have that problem at all.

I guess everybody knows whether or not the defendant is over or under 18.

Mr. Layton: --Well, if that's the bright line.

We don't know whether they're mature or immature, and we have to measure that somehow.

Justice Stevens: But the... but the purpose of a bright line test is to avoid litigation over the borderline cases, and you just have completely avoided that in this category.

Mr. Layton: Because the... having a bright line test means that the individual who murders at age 17, 364 days is treated differently than a more... a less mature individual who is 2 days older.

Justice Stevens: But it's an equally arbitrary line if it's 16, 17, or 15.

Mr. Layton: Yes, it is, and it's an arbitrary line that the legislatures have set because it's a legislative type determination based on what even Mr. Waxman called legislative facts.

Justice Stevens: May I ask one... have you read the brief of the former U.S. diplomats in the case?

Mr. Layton: Yes.

Justice Stevens: Do you think we should give any credence whatsoever to the arguments they make?

Mr. Layton: No.

[Laughter]

Justice Stevens: The respect of other countries for our country is something we should totally ignore.

Mr. Layton: That's not for this Court to decide.

Congress should consider that.

The legislatures should consider that.

It's an important consideration, but it is not a consideration under the Eighth Amendment.

Justice Stevens: We should leave it up to the legislature of the State of Missouri to resolve those questions.

Mr. Layton: Within the parameters of... of Thompson and Stanford, yes.

Yes.

The Missouri Supreme Court... the Atkins v. Virginia... in Atkins v. Virginia, this Court did not authorize the Missouri Supreme Court to reject Stanford.

The Court should refuse to... to sanction such activity by the lower courts and continue the course it set in that decision.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Layton.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Overton v. Bazzetta - Oral Argument

Fri, 09 Jan 2009 14:50:40 +0000

Case:

Overton v. Bazzetta

Media File:

02-94_20030326-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Thomas L. Casey

Chief Justice Rehnquist: We'll hear argument now in No. 02-94, William Overton v. Michelle Bazzetta.

Mr. Casey.

Mr. Casey: Mr. Chief Justice, and may it please the Court, the lower courts in this case were wrong for two reasons.

First, because the Constitution does not give prison inmates a right to receive in-person visits since that activity is inherently inconsistent with the status as a prisoner and with legitimate penological objectives and second, because the Michigan visitation rules are rational and reasonably related to legitimate penological interest.

The Court has recognized the right of intimate association with certain people in certain circumstances outside of the prison context in cases such as Roberts v. United States Jaycees.

In Turner v. Safley, the Court examined the question of how to evaluate a right which is recognized outside of the prison context and determine whether it applies inside the prison.

The right there was the right to marry.

The Court said you should look at the elements or incidents of the rights to determine whether it is affected by incarceration or the pursuit of legitimate corrections goals.

In Roberts, the Court also identified several attributes of the right of intimate association which respondents assert.

These rights include a high degree of selectivity and decisions regarding the affiliations, seclusion from others, relative smallness of the group.

Our contention is that all of the these attributes are significantly affected by incarceration and they are inherently inconsistent with incarceration.

And so the--

Justice O'Connor: Well, does the right to association while in prison survive in some form, do you think?

Mr. Casey: --In... the right to have the relationship which is what was actually at issue in Safley with marriage and in the Jones case with prisoner... with the union membership.

That status can survive.

There's no effect on the relationship here.

What this case is about is activity--

Justice O'Connor: Noncontact visits, aren't we talking about here?

Mr. Casey: --Noncontact visits but it involves activities inside the secure prison walls in furtherance of the relationship.

There's no impact on the relationship itself, the question is, can prison officials... do the necessities of prison have an impact on the right of association.

Chief Justice Rehnquist: What would exist outside... what relationship are you talking about?

Mr. Casey: The relationships that the prisoners are asserting are family members beyond the definition of the Michigan prison system... has adopted particularly minor nieces and nephews.

One of the problems with--

Justice O'Connor: Well, presumably children of the prisoner are included, are they not?

Mr. Casey: --Children of the prisoner are included within the definition--

Justice O'Connor: There are limited... they have to be accompanied by, what is it, a legal guardian?

Mr. Casey: --By a family member within the definition or a legal guardian, that's the Michigan regulation.

Justice Souter: As I understand it, the regs originally would have prohibited visits from minor siblings of the prisoner and that has been changed by statute; is that correct?

Mr. Casey: There was a statute passed, right at the close of the district court opinion that permitted the Department to permit visits by siblings, the Department changed the regulation to include siblings, minor sibling visits, so that issue is no longer before the courts.

Justice Ginsburg: Excuse me.

I'm sorry.

Mr. Casey: Pardon.

Justice Souter: On the class of visitor eligibility then, what were I going about is nieces and nephew, minor nieces and nephews?

Mr. Casey: That is the class with respect to minor children, they also have a contention about former inmates and--

Justice Souter: What is the State's interests in... in restricting visits from minor nieces and nephews of the prisoner?

Mr. Casey: --The prison officials testified uniformly that there were serious overcrowding problems, prison management problems, concerns about safety, so the overriding interest was to reduce the volume of visitors.

Justice Souter: So it's simply a means of reducing volume?

There's nothing peculiar to the niece/nephew relationship?

Mr. Casey: That's correct.

Justice Souter: You just want to keep the numbers down and this is one way to do it.

Mr. Casey: To keep the numbers down, the Department is permitted to draw lines.

And that is to draw a line--

Chief Justice Rehnquist: Is it also of some concern with the activities of children within the prison as opposed to adults?

Mr. Casey: --Oh, absolutely.

That... there was... there is extensive testimony that not only was there a problem with overcrowding and management, just because of the volume in general, but particularly, because of children.

Justice Ginsburg: Mr. Casey, I would like to back up to go where you were when you were responding to Justice O'Connor's question.

Do I take it that your position is whatever rights there may be to have a relationship, for example, by telephone call, correspondence, there is absolutely no right to any visitation, even noncontact, so that whatever you permit is a matter of administrative grace?

Is that your starting position?

Mr. Casey: Yes.

In response to--

Justice Ginsburg: There is no right to visitation, noncontact visitation at all?

Mr. Casey: --That's correct.

Justice Ginsburg: So everything that we're arguing about... you... in your view of this is a matter of administrative grace?

Mr. Casey: That's correct.

Justice O'Connor: Do you have a fallback position from that?

And if so, what is it?

Mr. Casey: The Court specified three issues and the first issue is whether there is a right to visitation at all.

Our position on that question is there is no constitutional right.

It's a privilege.

It's not a right.

The second question was whether assuming there is some limited right, are the Michigan regulations rational and reasonably related to legitimate correctional goals.

Justice Ginsburg: Mr. Casey, would you explain... you have been very clear of what is your position about... round one of this case in the lower courts, when you clarified that your regulations went only to contact visits and then you came around and said it applies to all visits.

Mr. Casey: The way the case evolved... the regulations on their face apply to all visitation.

The restrictions apply to both contact and noncontact.

When the case was initially filed, there were motions for summary judgment.

There was a 3-day hearing on that motion and most of the testimony that was introduced related to contact visitation.

So when the case first went to the court of appeals, the court of appeals mistakenly viewed the case was relating only to contact visitation.

Justice Stevens: Well, I got the impression that the State had represented that they... that they covered only contact visitation?

Mr. Casey: There were statements in the brief referring to contact visitation, largely because that was the evidence that was adduced at the summary judgment proceeding.

But the complaint challenged the regulations in their entirety.

And the parties, I believe, understood that it applied to both contact and noncontact.

Justice Stevens: But the Court thought it only applied to contact visitation--

Mr. Casey: In the court of appeals' first opinion it held that it applied only to contact.

Then it went back to the district court and then we had longer trial, more elaborative evidentiary proceeding.

Justice Ginsburg: --In the district court the first time around the district court didn't think it was limited to contact?

Mr. Casey: The district court dismissed the complaint in its entirety on our motion.

There was no misrepresentation.

There may have been some unintentional statements which led the court of appeals to conclude in the first view--

Justice Ginsburg: But the district court understood that it was dismissing the complaint with respect to any visitation, contact and noncontact, or we just don't know?

Mr. Casey: --The first order of the district court dismissed the complaint in its entirety.

And the complaint, the initial complaint, did not say we are challenging only contact.

The... as I say, because of the way the summary judgment evidence went in, it evolved that the... the court of appeals thought it was related only to contact.

But the rules on their face don't make a distinction between contact and noncontact.

Justice Stevens: May I ask this question?

The rules as I understand are at page 174 of the appendix of the cert petition and they don't tell us anything, at least I couldn't find anything, about the number of visits a person can have or how often.

Do the rules regulate that the number of times a particular visitor may visit an inmate?

Mr. Casey: Yes.

At page 111 of the joint appendix, there's a memorandum that was issued in April of 1995, which sets out hours of visitation for different institutions... it varies between institutions.

Justice Stevens: 111 of the joint appendix?

Mr. Casey: Of the joint appendix.

Justice Stevens: I see.

Mr. Casey: And it varies... excuse me, Your Honor.

Justice Scalia: It limits the number at any one time.

But does it limit, you know, you can only have so many visitors a month?

Mr. Casey: Yes.

Justice Scalia: Why isn't that sufficient to solve the problem of overcrowding and too many... too many people?

If... if you have too many people, an easy way to solve it is just to reduce the number of visits each one of the inmates is allowed to have per month.

Mr. Casey: That would have been one solution.

The Department chose a solution where they evaluated the visitors and concluded that it would be best to make quality visits for close family members following essentially--

Justice Stevens: Is there any evidence they found out how many nephews and nieces would be excluded by the rules and, therefore, worked that into the quantity determination, that's a strange way to regulate quantity.

Mr. Casey: --They did not know in advance how many nieces and nephews.

We simply don't keep that kind of record.

Justice Breyer: Is there a specific anti-niece... I didn't understand this case, I guess.

I thought there's a simple determination by the prison authorities, we don't want children in the room, period.

Now, we'll make an exception for that if they're your children.

Mr. Casey: That's essentially what they did.

Justice Breyer: And the reason had nothing to do... it had something to do with a lot of people, but basically they think children are more dangerous to the child or more disruptive, because they're younger, harder to discipline, they might run around in the room.

They might learn things that... that they don't want children exposed to the language or behavior of the prisoners, et cetera.

So I just thought it was... now maybe you're telling me, no no, that's not the reason it was totally different.

Mr. Casey: No.

That's--

Justice Breyer: This is quite interesting to me.

Mr. Casey: --No, that's one of the bases, it would possible to prohibit all children in prisons.

Justice Breyer: No, they don't prohibit all children.

They say generally children are more of a problem than adults to have in visits.

Mr. Casey: That's correct.

Justice Breyer: So we draw a line.

We say no children except for your own children.

Mr. Casey: That's correct.

Justice Breyer: Right.

Mr. Casey: That's our position.

Justice Breyer: So why don't you defend it on that basis, if that's what it is?

Mr. Casey: Well, I thought I was, I'm sorry if I didn't make that clear, Your Honor.

The Department made decisions on who is to visit.

And they said we are going to permit visits with close family members, children, grandchildren, at some point they have to draw a line, as you've said, which is kind of... and they drew a line to eliminate certain extended family members.

One of the problems is... is... if the Court finds that there is a right to visitation, the... there will be... I suspect a great deal of additional litigation on where those lines can appropriately be drawn.

Michigan, for example, has very generous rules concerning times of visitation, they permit visits on evenings, on weekends and holidays, some States don't do that.

If there's a right to visitation, I suspect there will be litigation on--

Chief Justice Rehnquist: Is there any limit on the number of times the same person can come in a given month?

Mr. Casey: --No.

There... inmates, for example, in the lowest security level are entitled to eight visits per month.

And the time is... is not regulated either.

It depends on overcrowding and situations like that.

Justice Scalia: What adults are permitted?

Suppose I don't have any children, I don't have any spouse, I don't even have any siblings.

Mr. Casey: The rule permits an inmate to designate immediate family members as defined by the Department and 10 other individuals.

Justice Scalia: Ten others, okay.

Mr. Casey: Now, there are certain prohibitions, former prisoners are prohibited, I think, unless they're a family member and receive the ward's permission.

That is being challenged here as well, but--

Justice Ginsburg: In relation to the family, this one last question, a child must be accompanied by an adult and you cut that back from any adult on the filing of the affidavit to only an immediate family member.

Does an immediate family member include an unwed father?

Mr. Casey: --No, it includes spouses, but it would include, it would include--

Justice Ginsburg: But an unwed father would not be a spouse?

This is the child... the mother is incarcerated, the child is brought to visit her.

Can the person who brings the child be that child's biological father, maybe even care-giving father?

Mr. Casey: --The child can visit if the child, you know, is the biological child, but the child has to be brought by a member of the immediate family.

Justice Ginsburg: But the unwed father would be a member of the child's immediate family.

Mr. Casey: That's correct.

Justice Ginsburg: Although not of the mother's immediate family?

Mr. Casey: That's correct.

Someone other than the unwed mother would have to bring that child under the rules.

Justice Ginsburg: The mother is in prison?

Mr. Casey: But someone other than the unwed father would have to bring--

Justice Ginsburg: The unwed father would not qualify?

Mr. Casey: --He is not qualified--

Justice Scalia: Unless he's the guardian?

Unless he's the guardian?

Mr. Casey: --If he is the legal guardian, yes.

Justice Scalia: If he's the legal guardian, he would?

Mr. Casey: Yes.

If the mother, the custodial parent, has gone through legal guardianship.

Justice Scalia: A close enough family relationship despite the lack of the wedding bond, he would probably be the guardian, I would guess, wouldn't he?

Mr. Casey: The guardian in fact, perhaps, but the Department is permitted to insist on enough evidence to demonstrate the legal relationship.

And, again, this case is about drawing lines, and the prison officials here drew reasonable lines based on a perception that they observed in--

Justice O'Connor: This is a facial challenge not as an as-applied?

Would an as-applied challenge be possible, assuming we recognize some right of visitation?

Mr. Casey: --These rules could be challenged as an... on an as-applied basis but we did go through a complete trial on the merits here.

There is evidence.

Our position is we submitted evidence to demonstrate the reasonable relationship under Turner v. Safley.

So if there is a right, then we satisfied the requirements of... of permitting our rules to take... to take a--

Chief Justice Rehnquist: A particular person brought this action, did they not?

Michelle Bazzetta?

Mr. Casey: --Yes.

It's a class action.

Inmates and--

Chief Justice Rehnquist: And she was an inmate somewhere?

Mr. Casey: --She was an inmate.

So... I have not addressed the Court's third question, the cruel and unusual punishment.

If there are no questions on that, I'll rely on the briefs.

And I would like to reserve my remaining time for rebuttal.

Argument of Jeffrey A. Lamken

Chief Justice Rehnquist: Very well, Mr. Casey.

Mr. Lamken.

Mr. Lamken: Mr. Chief Justice and may it please the Court.

The right asserted here for inmates to receive in-person visits other than those permitted by Corrections Department rules is consistent neither with inmate status nor with the legitimate penological interests underlying Michigan's rules.

Justice Ginsburg: But, Mr. Lamken, you are then agreeing with Mr. Casey that there is right of... no right to any visitation, contact, noncontact, that what right... what privilege is extended is a matter of administrative grace?

Mr. Lamken: That is our initial position, yes.

And we also have two backup positions.

Justice Kennedy: On your initial position, in your view, under a scheme like this could complete discretion be given to the warden to determine who gets the visitation and who does not?

You know, you didn't really... you've been looking sloppy for a couple of days so I'm going to take away your visiting privileges?

Mr. Lamken: Not necessarily.

The fact that the Federal Constitution itself does not create a liberty or a property interest in visitation, does not preclude the possibility that State prison regulations or State law might create that type of interest.

It could not be taken away under--

Justice Kennedy: I know it isn't an issue here.

But one of the reasons I'm asking is because if the warden doesn't have complete discretion, then that indicates that maybe there's some right that's either conferred by the statute or by the Constitution.

You say the warden has complete discretion?

Mr. Lamken: --The answer is not necessarily.

And that is the Court would have to examine under the standards established by... in Sandin v. Conner, whether or not State law provides a property or a liberty interest that can't be taken away without sufficient process.

And that--

Justice Kennedy: As you read these regulations, does the warden have the complete discretion?

Mr. Lamken: --Well, it's not a question of what the content of the regulations are.

That was... Sandin v. Conner got rid of that inquiry.

Instead, the question is whether it is a grievous deprivation or an adverse... or excuse me, an atypical hardship that is contrary to the typical norms of incarceration.

Justice Kennedy: And under that standard, do you think the warden should have complete discretion to deny anybody for any reason visiting privileges?

Mr. Lamken: We think that's a very difficult question.

If push came to shove, our answer would be the warden should have that discretion but I should point out that Bureau of Prison regulations and the State of Michigan both provide extensive hearing procedures before such rights are withdrawn.

And such that the type of... for example, in Michigan, you can challenge the underlying finding of misconduct if your rights are going to be taken away for the minimum 2-year period bound that's at issue here.

And you get not only an investigation, you get a hearing, you get administrative review, you get judicial review.

And we believe that those types of procedures are certainly sufficient in terms of due process.

The answer to that question would be if push came to shove, we would say no, it could be a matter of--

Justice Stevens: Then how would you distinguish the holding in Turner against Safley pertaining to the right to marry?

Mr. Lamken: --On two bases, Justice Stevens.

First, marriage has or can have a religious, that is free exercise element, and it also has an effect on property rights and the rights to certain benefits outside the prison context.

Neither is true of the right to... of visitation.

Second, incarceration as a form of punishment necessarily places a barrier between the prisoner and those with whom he would otherwise associate.

The very essence of the punishment is that separation and the vesting of control over exceptions to that separation, in the State and corrections authority.

Marital status in contrast, such as free exercise of religion, doesn't have the necessary relationship to incarceration as a form of punishment.

Justice O'Connor: Do all prisons allow some form of visitation for prisoners?

Isn't that a pretty universally accepted practice?

Mr. Lamken: It is a universally accepted practice, that for certain prisoners under proper conditions, certain visits, will aid in rehabilitation and that is the accepted view and one that the Bureau of Prisons firmly supports.

Justice O'Connor: Right.

If you're going to release somebody back into society, you don't want to cut off all contact with family members or friends who might help that person on release, do you?

Mr. Lamken: Well, that, Justice O'Connor, is a matter of penological philosophy, but not a matter of constitutional right.

And as a matter of sound penological philosophy, the Bureau of Prisons, for example, does allow visits.

But it will restrict those visits rather severely if the... if the circumstances provide.

And we believe that one--

Justice O'Connor: Well, why isn't the Turner/Safley rule quite adequate here to deal with this?

Mr. Lamken: --Well, Your Honor, you could decide it... actually Turner v. Safley, as we read it has two components.

On page 95 in particular, it says that an inmate retains those rights that are not inconsistent with incarceration or with the penological interests of the corrections system.

And so we believe that this Court could resolve it under either of the inconsistent-with-inmate status problem, which is to say that there is no right.

Or it could go into the Turner v. Safley balancing and determine that, in fact, Michigan's rules do have the requisite relationship to legitimate penological objectives.

Justice Breyer: But to the first, if you're right on the first point, which is what is disturbing about the first point, a prisoner would have no right whatsoever to any kind of visit or communication or association with outside people, even if there were virtually no penological reason for doing that?

And that's... why do you have to go that far?

Mr. Lamken: Justice Breyer, I think part... when you say communication, I wouldn't go that far.

We are saying that--

Justice Breyer: You say that because that's what's that the cases seem to say.

Communication, association.

Mr. Lamken: --Well, in fact, what incarceration cuts off and what the punishment of incarceration is is the physical separation of the inmate from the rest of society.

The inmate, for example, it's not inconsistent, for example, for a corrections official to have authority to give an inmate a furlough to go outside to work for example.

But it is inconsistent, for an inmate to say you must give me a furlough to go outside because your failure to do so interferes with my in-person associational rights.

The very essence--

Justice Breyer: You're thinking of cases where that's justified what the prison is doing.

And if you win on your first point, you better think of cases where the prison is unjustified, but it still wins.

Mr. Lamken: --Well, I think the answer is, the very essence of the punishment of incarceration is separation from society and the vesting of exceptions thereto in corrections officials.

That is the punishment and that is the difference between, for example, a broader right to communicate, which wouldn't necessarily be cut off.

A broader right--

Justice Scalia: You would say that even if... even if the prison... even if the prison administration is unjustified in refusing to allow the prison a furlough out into society, even if a thoroughly trustworthy prisoner, you would still say he has no right to?

Mr. Lamken: --Absolutely.

That is the nature of incarceration as punishment, Justice Scalia.

Turning to the Turner balance argument--

Unknown Speaker: So you say there can be solitary confinement for life, if that's what the State wants?

Mr. Lamken: --Justice Kennedy, solitary confinement should be distinguished from merely cutting off visitors from outside.

And the answer to your question is, yes, under certain circumstances, solitary confinement for life would be permissible, but one would, as the Court has pointed out in various cases, have to--

Justice Kennedy: Well, then under all circumstances under your view?

Mr. Lamken: --Well, the barrier for solitary confinement for life would be whether or not that's cruel and unusual punishment.

But the reality of prison life is that prisoners don't get to choose who their cellmates are.

They don't get to choose who they bunk with.

They don't get to choose who they dine with.

They don't get to choose the institution in which they're incarcerated.

Even though each of those personal choices may be protected outside.

Justice O'Connor: Well, presumably, the prison allows prisoners to send mail?

Mr. Lamken: Yes, that's correct.

Justice O'Connor: Okay.

How about phone calls?

Mr. Lamken: In this case the prison does allow phone calls for outside, which are other means by which general First Amendment community rights--

Justice O'Connor: So a prisoner who doesn't know how to read and write and who has... whose family has no telephone, what are they supposed to do without a contact visit?

Mr. Lamken: --Well, the Court--

Justice O'Connor: Or a noncontact visit?

Mr. Lamken: --The Court actually addressed that in Pell, which is to say that that's not a problem unless the State precludes the prisoner from getting aid in writing letters.

And Pell actually addressed the specific claim that the prisoners were unable to write.

And there's no evidence in this case that the State precludes prisoners from getting aid in writing or reading letters so that they may communicate with the outside world.

But the--

Justice Ginsburg: Are you saying that there is a right to communicate to that extent, or you've been candid and upfront and said there's no right to visitation.

Mr. Lamken: --That's exactly the line we draw, Justice.

Justice Ginsburg: Do you extend that as well to telephone calls and writing letters?

Mr. Lamken: No.

There may be... there may or is a distinct First Amendment and societal interest in allowing general communications between inmates and the outside world.

In that sense it's important to distinguish between the two rights at issue.

One is a substantive due process in-person associational right, and the other is a more general First Amendment right to communicate or like a more general First Amendment right to free exercise of religion.

The former is what incarceration cuts off.

The latter is something that incarceration may limit but generally only to--

Justice Stevens: But you would agree that the inmate could be... have a visit from his lawyer?

Mr. Lamken: --Yes, Your Honor.

He would have a visit from the lawyer and potentially clergy as an exception as well.

And that's because of the distinct and hybrid nature of the right.

It's not merely an associational right, but the right to a fair trial may be at issue, the right to petition for redress of grievances, the right to free exercise of religion may also be at issue in the case of clergy.

That's why almost all of these limits, except clergy and lawyers.

Turning to the Turner balance, the Court below invalidated the... these rules as applied to noncontact visits based on the principle that noncontact visits do not raise the penological concerns that contact visits do.

That was incorrect for three reasons.

First, many prisons including Federal Bureau of Prisons' facilities, lack noncontact facilities.

The construction of new facilities is not the type of de minimis or ready alternative this Court contemplated in Turner.

Second, the portable noncontact booths used by the State of Michigan separate the visitor from the--

Justice Stevens: Are there any high-security prisons that don't have noncontact facilities?

I know there's some--

Mr. Lamken: --No.

Justice Stevens: --low security.

Mr. Lamken: No.

No.

In fact, the Federal Bureau of Prisons' facilities, if they are high security or pretrial dissension centers, they will have noncontact facilities.

If they are lower security--

Justice Stevens: Well, shouldn't we decide the case on the assumption that we're dealing with facilities that can have noncontact visits?

Mr. Lamken: --The facilities in these cases... may I answer the question, Chief Justice?

I see I'm out of time.

Chief Justice Rehnquist: Yes, you can.

Mr. Lamken: Okay.

The facilities at issue in these cases are portable booths, which separate the inmate from its visitor but not the visitor from all the inmates who are having contact visits so they do not address the problems of the child visitors having contact with inmates.

Argument of Deborah LaBelle

Chief Justice Rehnquist: Thank you Mr. Lamken.

Ms. LaBelle, we'll hear from you.

Mr. LaBelle: Mr. Chief Justice, and if it please the Court.

The Court... I would like to clarify quickly the administrative proceedings before we got to trial in this Court, because the Court asked an inquiry.

We did have a 3-day trial and a preliminary injunction hearing and at that time the Corrections Department represented that the rules were only as to contact visits and the Court, recognizing that there were some smuggling and contraband issues, thereafter denied a preliminary injunction and followed with the summary judgment, summary disposition based solely on the understanding that it was limiting... these rules only limited contact visits.

And that's how it went to the Sixth Circuit.

Justice Ginsburg: So there's nothing in the district... in the district court's opinion or order that clarifies that?

Mr. LaBelle: No.

The district court ruled only with regard to thinking it was contact and the Sixth Circuit accepted it that way, when it became clear, when it was sent down, that the visits were being applied to ban all visits for certain categories of people, we asked for a rehearing in the Sixth Circuit, they used a clarifying opinion and then said that, no, the justification is given for limiting contact visits, smuggling and contraband did not suffice for limiting all visits for these categories of visitors.

Chief Justice Rehnquist: Did the case go to the Sixth Circuit twice?

Mr. LaBelle: Yes, Your Honor.

It went to the Sixth Circuit after a whole... first on the initial preliminary injunction, then it went back down, it was tried on the issue of noncontact visits and the permanent ban.

The permanent ban, Mr. Chief Justice, was not tried in the first go-around, because they indicated that they had not yet implemented it in any form, so it was not yet right.

Chief Justice Rehnquist: Is that particular procedural history significant in what we decide on the issues before us?

Mr. LaBelle: I think that it is not significant, only to clarify one point, the issue of whether the siblings are before this Court.

It was after the district court's decision that the Department chose to pass... that a rule was passed voluntarily allowing the Department to allow siblings in, which they have, but they have put a position throughout the case and up through the Sixth Circuit that they had the right, at any time, to withdraw that voluntary choice to allow siblings.

So I think the siblings issue is still very much before this Court.

Justice Ginsburg: But their position is they have the right to say no to all children?

Mr. LaBelle: That's correct, Your Honor, including siblings, children, that it is all a matter of discretion.

Justice Ginsburg: So their position is not different with respect to a child, a grandchild, a sibling.

They say whatever we want to do, it's up to us to do in our judgment and you have no right at all, whatever you get is a privilege.

Mr. LaBelle: That's correct, Your Honor.

And I think that that is why the case has gotten so far.

It is because that the insistence that families and prisoners do not retain the rights of intimate association past the prison door.

Justice Scalia: Is it unconstitutional then, and this is why I'm reluctant to get this Court into a whole new line of constitutional law... is it unconstitutional to send a prisoner from the East Coast to a prison far removed from his family and friends?

Mr. LaBelle: Certainly not, Justice Scalia.

Justice Scalia: Why not?

Mr. LaBelle: Because that is a collateral consequence of something that happens to prisoners.

They get moved.

They get transferred.

This Court addressed that in Olim.

That's not what happened.

Justice Kennedy: Suppose they do it for the purpose of denying the prisoner the contact?

Mr. LaBelle: I think that if they are targeting the intimate associational rights at issue, if that is the purpose that we are going to target the intimate associational rights, then a fundamental right has arisen and then it's a Turner question.

Justice Scalia: You're not targeting the rights.

Their object is not to cut off those rights.

Their object is to reduce the number of children in the room, to reduce the number of visitors, just as in the other case, their object is to use prison facilities that are more... that are cheaper, that are... that are more readily available, so they send the inmates somewhere else.

But if you have a constitutional right to the... to the visitations you're talking about, it doesn't seem right to me that you should be able to be removed from the people who could possibly visit you.

Mr. LaBelle: I think that, Your Honor, what's going on here is that the decision to slice deeply into the family and to make that decision as to who gets to visit and who doesn't goes directly to, and that's exactly what they did, they said, here are minors and we're going to select out certain intimate associations, we're going to slice--

Justice Scalia: We're going to have to pass on one by one nieces, nephews, grandchildren, illegitimate children, children of... one by one, all of these are constitutional questions, on the theory, I suppose, that what is truly stupid must be unconstitutional.

Mr. LaBelle: --I think you don't have to for two reasons, Your Honor.

One I think if this Court affirms that the intimate associational rights that are at issue here do pass through the doors for the families, that you will have Departments of Corrections exercising their discretion and their expertise under Turner, which they're allowed to do, something that is clearly not evident here.

They didn't... there is no expertise in their decision.

Justice O'Connor: What... what is the basis of the... is this some kind of a facial challenge to the whole scheme of regulating noncontact visits?

Mr. LaBelle: No, Your Honor.

I think that--

Justice O'Connor: What is it?

Is it an as-applied challenge, of some kind?

Mr. LaBelle: --Thank you, Your Honor.

With regard to the categorical restrictions, they are challenged as both facially and as-applied under Turner, because I think Turner is a very fact-intensive question.

Chief Justice Rehnquist: Well, what... what happened to Mrs. Bazzetta who wrote this... who brought this action?

Did she ask for all these things and was denied them?

Mr. LaBelle: The... Your Honor, the... it was a class action.

And she represented--

Chief Justice Rehnquist: I know it was a class action.

Mr. LaBelle: --one of the... what happened is that she... her sister wanted to bring in her newborn child to visit Ms. Bazzetta and that would have been the nieces and nephews which were precluded.

There were other class representatives--

Chief Justice Rehnquist: But her sister wanted to.

I mean shouldn't her sister have brought the action, then?

Mr. LaBelle: --The... Ms. Bazzetta was denied the visit with her niece and nephew.

Her sister was also a class representative.

Chief Justice Rehnquist: Ms. Bazzetta is the inmate?

Mr. LaBelle: Is the inmate.

There were... the class representatives were both the prisoners on the inside and the family members on the outside who joined together to bring this action.

Chief Justice Rehnquist: And what else did Ms. Bazzetta challenge that had happened to her, besides the visit from her sister?

Mr. LaBelle: Ms. Bazzetta challenged only the denial of her ability to see her nieces and nephew.

Ms. Barker challenged the ability to see her children.

Ms. Barker challenged--

Chief Justice Rehnquist: Well, how... how can one of them represent an entire class then if each of them is challenging something different?

Mr. LaBelle: --We had class representatives, Your Honor, that were certified as adequate to represent each of the interests in which we presented to the Court.

Justice O'Connor: Is the claim a First Amendment claim or what?

What... what is... what provisions of the Constitution specifically are you looking to?

Mr. LaBelle: With regard to the categorical restrictions on the minor siblings, children, nieces and nephews, it is both a First and Fourteenth Amendment claim of intimate association, and family association.

And what we have said here is that the Department can make its decisions to limit people.

They can do it either neutrally by volume, they can say we're going to say neutrally that you can only have so many minors, just as they do adults.

You can only have so many minors come to visit at any time and we are not going to slice into who... who is your most intimate family member.

Or we can do it with regard to the further-out reaches, which is they can say cousins, I suppose, or even further, but they can't go into--

Chief Justice Rehnquist: What, where... where--

Mr. LaBelle: --I'm sorry, Your Honor.

Chief Justice Rehnquist: --Where do you get this out of the Constitution?

Mr. LaBelle: I think that I get it from the Court's decisions in Moore, in Roberts and that this Court has already said that--

Chief Justice Rehnquist: Well, Roberts was a case involving whether you can get into the Jaycees or not, not whether you could get out of prison.

Mr. LaBelle: --I think that you're correct, Your Honor, in that the Roberts edicta, which everyone has relied upon in this case, is what I'm referring to.

But Moore directly says that you have to protect certain intimate family relationships and by anyone's understanding of what it means to be family--

Chief Justice Rehnquist: Well, Moore was a zoning case.

I mean, it had nothing to do with prisons.

Mr. LaBelle: --It had nothing to do with prisons, Your Honor, but it did identify that there are intimate associational rights involved in families choosing--

Justice O'Connor: But... but when in the prison context, we've had specific cases and have tried to articulate some governing principles outlined largely in Turner v. Safley about what the prison can do and not do.

Should we just look to that case and analyzing this rather than the... some zoning cases and other things?

Mr. LaBelle: --I think that... I think that Turner is the governing case in here and in fact, I think if... further that if these rules, if this is not affirmed it would be... do great damage to the Turner case, because what Turner says is when you have these fundamental rights, that then you look to extreme deference to the Corrections Department.

Justice Scalia: But Turner assumes the question that we've been immediately discussing, that there is a fundamental right.

Before you get to the Turner questions, you have to establish that there is a... aright to... to... to visitation in prison.

If you talk about intimate... the right to intimate family association, I suppose there is no more stronger right to intimate family association than the right of... of... of a man and wife to cohabit, and that's... that's eliminated in prison, unless you think that conjugal visits are constitutionally required.

Do think that they're constitutionally required?

Mr. LaBelle: No, I don't think--

Justice Scalia: It's a pretty intimate family association that you're cutting off there, isn't it?

Mr. LaBelle: --I think that although some States certainly allow it, it's certainly not constitutionally required, because there is two prongs of Turner.

One is whether it... it is inconsistent with incarceration and certainly you can argue that people going outside the prison, the conjugal visits puts certain burdens and may be inconsistent with the general incarceration.

Justice Scalia: You can arrange for it.

Mr. LaBelle: If every--

Justice Scalia: You can arrange for it.

Mr. LaBelle: --You can arrange for it.

And I think that you would not win under a Turner test with that limit on that associational right.

But here where they have impinged on the associational and intimate associational right in such a way but if--

Justice Ginsburg: Well, that's where we have... Mr. Lamken clarified that... that there is a right of expression, and that's why he said you couldn't cut off letters.

But he maintains that there is not this right of intimate association, that the right doesn't exist at all.

So you never get into Turner v. Safley balancing.

And I think your first job is to establish that... that just as a prisoner retains a right of expression, which can be curtailed drastically given incarceration, just as there is that interest and expression, so there is a retained interest in intimate association, which can be shrunk, but not totally eliminated.

Mr. LaBelle: --Yes, I think that's correct, Justice Ginsburg.

The... this... this Court has on the outside recognized that we have intimate association rights, we have companionship rights.

And although they may... there may be attributes of that right, that are necessarily diminished by... by having one member of your family in prison, the many attributes of what it means to be a family is not gone.

The ability to see your... your wife's face, the ability to see your child and assure that you're--

Justice Breyer: Well, all that is true, but I thought... I thought that this case... it's much more complicated than I thought.

I thought it was fairly simple, at least in my mind.

I assume with you that Turner is the law and there's some kind of constitutional right here.

But I thought we had basically four regulations, one says no children can visit unless they're your own children.

The second one says no prisoners can visit unless they're in your family.

The third one says that you lose those rights if you're on drugs, you lose them for two years if you have two drug problems.

And there was one other, which... if the children come in, they have to be accompanied by an adult, okay?

And I thought that's what the regs say and, in addition, there's another reg which says, warden, if you feel you need to make an exception for a particular visit, you can do it.

Okay?

Now, that's what the regs were, the district court said those are unconstitutional.

The court of appeals said that's right and I would like to know, assuming with you, that Turner is the law, what's unconstitutional about them?

It strikes me as the most reasonable thing to say that you can't have children in a prison environment unless they're your own children.

What's wrong with that?

Mr. LaBelle: --And I think, Justice Breyer, what's wrong with that is that it's not the business of the Department of Corrections to start making decisions once you decide that family members and children can come in, that to make decisions as to which family members are close... which... for those people who are 18, 17, 16, who have no children but wanted to see their only family member, which was their brother or sister, the questions--

Justice Breyer: They've now dealt with that, I take it.

And you're saying that... that we should decide what is a totally hypothetical thing, whether a regulation in... are they seeking damages?

I take it they're seeking--

Mr. LaBelle: --No.

Justice Breyer: --an injunction.

The law is now that they will let the family members in, if you have a brother who's 2 years old, they can bring the brother.

So... so I would think that's pretty hypothetical, but any way, I'll consider that.

What about the rest of it?

Mr. LaBelle: I think that the question is whether it's reasonable to slice off certain family members and there's a penological--

Justice Breyer: They say, sure, it's reasonable?

Mr. LaBelle: --interest in doing it.

Justice Breyer: Sure it's reasonable.

The reasonable thing is we want as few children as possible.

But we're not prepared to say, if they're your own children, you can never see them.

That to me sounds like a reasonable thing.

Why isn't it?

Mr. LaBelle: Because it is total discretion on what constitutes the family and who comes in and it interferes with the fundamental right at issue here which is--

Chief Justice Rehnquist: Can't they... can't they regulate categorically rather than just tuning it to each particular family to say that your own children are in a different class than siblings or nieces or nephews and say one can... I mean, the whole thing is line-drawn.

You're going to draw lines or slice somewhere as you put it.

Mr. LaBelle: --I think that's true that you can draw lines, and you can draw lines that are content-neutral with regard to the family, because that's what the concern was here, volume.

So you can say, you can only have two minors, or you can only... on your list, or you can only have five minors visit or we're going to limit the number or they can say, we are only going to protect the recognized intimate associations which include your children, your grandchildren, your siblings and your nieces and nephews.

Justice Breyer: Well, of course.

You say nieces and nephews are the same as a child, that I guess, that's a matter of judgment.

And I take it I can imagine a case where a person and who is a prisoner would have the same relationship with let's say a foster step-child or something that he's raised that I might have or you might have with a natural child.

But that's why I thought there is a reg here that permits the warden to make exceptions in unusual cases.

Now, why isn't that good enough?

So that if the warden turns a person down, where that is the relationship, then that person could complain about it and bring a lawsuit rather than striking down the whole reg.

Mr. LaBelle: The... the record in this case is that the warden had neither discretion or at least the wardens that testified felt they had neither discretion to allow minor siblings in and... or do they have any discretion whatsoever with regard to the permanent ban.

Justice Scalia: Of course, Ms. LaBelle, once you leap over the... the prior constitutional question, as Justice Breyer has and go immediately to Turner v. Safley, we are in the line-drawing business.

And it becomes a constitutional question, whether it is unreasonable to exclude an nephew or a niece or somebody who has this, is as close to the prisoner as a child might be.

Why do we want to get in this line-drawing?

Why... what is the problem here?

Is there any real risk that prisons are going to arbitrarily and unreasonably limit visitation?

Would... would any prison... or any person trying to manage a prison without... without a revolt arbitrarily cut off visitation?

It seems to me a problem in search of a solution.

Mr. LaBelle: I think that, Your Honor, they did arbitrarily here, they denied all minor siblings--

Justice Scalia: Solution in search of a problem.

I'm sorry.

Mr. LaBelle: --They denied... excuse me, Your Honor.

They denied all minor siblings coming in.

They restricted who can bring the child in to such an extent that there were... that children were no longer allowed to come in to visit their parents.

They denied all biological children.

Justice Breyer: What do you mean they couldn't?

The children couldn't visit... I'm now confused about the facts.

I have a reg in front of me, by the way, which says the warden may, quote, allow a single visit between a person and a prisoner and a person not on the approved visitor's list as long as it's in the best interests of the prisoner and there's no threat to order and security.

Now, why is it that that reg doesn't give the warden the power to deal with unusual cases?

Mr. LaBelle: The testimony of the warden was if you were not on the... the visiting list, Your Honor, you could come in during the time that you were waiting to get cleared.

But if by policy you were prohibited from coming in, if you were a minor sibling--

Justice Breyer: I don't understand.

Mr. LaBelle: --The testimony of the warden was that if by policy you were prohibited, then there could be no exception to policy.

There could be--

Justice Breyer: He said there's no exception, if, in fact, a prisoner has raised a 6-year old child just as it's his own child, but, in fact, there's no formal adoption paper.

So there's testimony that he would never let that child in?

Mr. LaBelle: --There's testimony that... that there was no ability for wardens to make exceptions with regard to policy decisions.

If, in fact, the person had not yet been able to clear and be put on the visiting list, but they were allowed, those exceptions could be made, but, for example, the... the prisoner whose younger brother was begging to come in after their mother had died and this was his only relative, the warden testified she could not make an exception to that.

Justice Breyer: I'm not concerned... although I believe you also said that there were... their own children weren't allowed in.

What's the example of that?

Mr. LaBelle: The example of that was actually that there was... some testimony with regard to Justice Ginsburg's example with regard to the... the father of the child who was unwed could not... and who had custody of the child but was not the legal guardian could not bring the child in to visit.

There are many--

Justice Breyer: No... so, in other words, you have to be the legal guardian of the child if it's not your child, in order to have a visit?

Mr. LaBelle: --If you were not... no.

Even if it is your child, your biological child, you must be the legal guardian, if you are not married.

So that if you're not married, you cannot bring... the parent can't bring the child in to visit the other parent, unless you go through the full legal guardianship proceedings.

And--

Justice Ginsburg: The relationship that counts is the relationship to the prisoner, not to the child?

Mr. LaBelle: --Correct, Your Honor.

Justice Ginsburg: And the unwed parent would not be related to the prisoner, but you have on that list, let's assume we're past the basic question and there is some constitutional right, you have on the list a person whose parental rights have been terminated, and you would allow that person a right that doesn't exist outside the prison, in other words, once a parental relationship has been terminated, there is no visitation right, according in the larger society, but you would say that it's arbitrary in the prison setting to deny that?

Mr. LaBelle: I think... yes, Your Honor.

I think because it's not a right to visit, you do have a right on the outside to that intimate association.

If... and here, I mean you're not precluded from intimate association with your biological child and the parent, the legal parent, can make a decision can make a decision as to whether--

Justice Ginsburg: Well, then it's no right of yours, if... if you... if the legal parent wants to allow someone with no parental rights, but you've... as far as the law is concerned, as far as any right is concerned, a person who has... whose parental rights have been terminated is a stranger to the child.

And it's one thing to talk about what would be reasonable for a prison to do.

But I don't know how you get any right with respect to someone who has no right outside the prison?

Mr. LaBelle: --I think the protection for intimate association on the outside is not limited to legal relationships.

In here are legal parents on the outside who are members of this class, and who were class representatives saying, listen, the adoption here was an open adoption.

We all agreed that this child, in the best interests of this child, that it should see it... his or her natural parent.

And I'm making a decision that it's in the best interests of this child to come in and visit.

And it's the prison saying... and I have to say the prison didn't say there's some reason for us to do this.

They said we never thought about it.

We really--

Justice Breyer: So this case... this case, in other words, it sounds to me from having listened to it and looked at it a little bit, it's a kind of litigation problem, I mean, there's a long litigation history here of contention.

And perhaps extreme positions.

But given that, is it up to us to say, could we say, look, on their face, these regs are okay, under Turner?

If they're not... if they're being applied in a way that makes really very little sense, let the individual who has this unusual situation of the, you know, adopted child or something like that, let him ask for the visit, let him ask for an exception to be made, if necessary, and then if that doesn't happen, and I would imagine normally, if calm prevails, it would happen, but if it didn't happen, then he could bring his case.

Or if there is such a person in this case, you could proceed with that person.

Mr. LaBelle: --Your Honor, assuming the right that exists and we go to Turner--

Justice Breyer: Yes.

Mr. LaBelle: --I think there has to be some reasonable justification for infringing on the right.

In the case of, for example, the biological children, the guardianship... which is not just one, Your Honor, but 20 percent of the women in prison have their kids in foster care or people who cannot bring them.

We're not talking about one or two.

We're talking about hundreds of people here.

To the extent that they have any reason, but what they said is we just didn't think about it.

They didn't exercise their expertise.

Justice Souter: Ms. LaBelle, are you asking them to exercise their expertise on a subcategory of children basis?

Or are you saying as... is your real point something you mentioned a moment ago, that once they make a decision to allow child visitation, they've got to restrict it?

If they restrict it at all on what you call... I think you called a content-neutral basis.

And I believe you meant by that they can put a number on it, only X number of children in Y period of time or something like that, but they cannot... I thought you were saying... determine subcategories of children who will be privileged and others that will not be.

That would be one answer to Justice Breyer and one answer I guess to the problem that we've all got about how are we going to manage this litigation if... if we've got to do it on a case-by-case basis.

Is... is your basic position the so-called content-neutral position?

All you can regulate is number once you allow any in?

Mr. LaBelle: Yes, because that was the concern articulated.

If, in fact... I suppose there could be one exception.

If in fact, there was some evidence of a... of a wild minor sibling smuggling ring and there was some basis to target certain individuals, they could do it.

But what they said--

Justice Souter: Well, then you would say the burden would be on the... on the prison to say despite the number regulation, this one can't get in as opposed to the burden on the prisoner saying despite your regulation, an exception ought to be made for me?

You're switching the burden?

Mr. LaBelle: --Correct, Your Honor.

Justice Souter: All right.

Now, so--

Chief Justice Rehnquist: --What is your authority for... in cases from this Court, say, for the content neutral principle?

Mr. LaBelle: I think that the... the authority is... is Turner itself, because what they said--

Chief Justice Rehnquist: Does it say something about being content-neutral?

Mr. LaBelle: --No, but it did say what you have to do is compare the rationale for the regulation that infringes, you have to see if there's a reasonable penological purpose, are there alternatives and look at the balancing.

Justice Scalia: Well, do you think that's fair?

You think that's fair?

I have children that want to visit me.

They are my children in... in a stable wedlock situation, they can't visit, because we've adopted an absolute number of children and and some of my coprisoners whose nieces and nephews want to visit, they have been visiting, so I can't see my kids?

Does that seem fair to you?

Mr. LaBelle: The... the rules themselves, the time, place and manner restriction.

Justice Scalia: Well, you want an absolute number.

Kids are kids.

So since some of my coprisoners are seeing nieces and nephews, I can't see my children.

There are just too many.

Mr. LaBelle: I think that that wouldn't occur, Your Honor.

Justice Scalia: It wouldn't occur?

Mr. LaBelle: Because, first if, in fact, you limited the number of children down to such a minuscule amount of minors that had no relationship with their concerns with--

Justice Scalia: Well, it would be anything under nine just on--

--You put me in prison, you got big troubles.

Mr. LaBelle: --But they allow that amount, Your Honor.

What they said was we need to reduce volume by 10 to 15 percent.

And we had absolutely no problem with the time, place and manner restrictions it did so.

What they did by this sort of overbreadth and basically because they felt there were no rights at issue here, they reduced it over 50 percent.

There's... I think that you have to look to see if there's a reasonable relationship here.

Justice Souter: Let me ask you--

Mr. LaBelle: --and there's not.

Justice Souter: --I'm sorry.

I didn't mean to cut you off.

Finish your--

Mr. LaBelle: No, Your Honor.

Go ahead.

Justice Souter: --How do you square your argument on content-neutral with respect to child visitation?

With other visitation that might be an issue, for example, one of the things that's an issue here is the possible visitation of other prisoners.

Would you say that the answer to that is that once the prison allows any adult visitation, the only limitation it can place as a general matter is numbers, and, therefore, the prison would have to object on a specific basis with the burden to establish on a specific basis that the visitation of any prior prisoner would be deleterious?

Mr. LaBelle: I think that the... what they do is, for adults, there's a 10 limit there.

Justice Souter: No, no, just as a threshold question, are you going to apply your... your content neutral-theory across the board to adults, as well as children?

Mr. LaBelle: Yes, absent there being a rationale or a specific security concern, which is--

Justice Souter: And it would be the burden of the prison to show that in a given case?

Mr. LaBelle: --I think that if you're doing a categorical restriction, it is their burden.

If they're doing--

Justice Souter: I thought you were saying the only categorical restriction you can make is visitors, nonvisitors.

When you say you can have visitors, the only further restriction is one of numbers given at least this prison's rationale?

Is that correct?

Mr. LaBelle: --No, I think that you can have individual requirements as many States do with regard to a rational basis to say someone who has been out of this prison for 6 months, we're not going to allow you to come in, because it's... there's a rational basis.

Justice Souter: Okay.

If you're going to accept that kind of categorization as legitimate, what's your basis for saying that in the case of child visitation, it's got to be content-neutral?

Mr. LaBelle: I think because--

Justice Souter: Or are you merely quantifying?

Mr. LaBelle: --I think that because there was absolutely no basis, the only concerns... I think because it was a different... a deference to the different concerns articulated, the concern with regard to minors was simply volume.

There was no articulation that any particular group of minors raised any specific concern.

Justice Souter: So you're... so you're saying, look we will take their rationale at their word, and if we take it, this is the only limitation that they could put on?

Mr. LaBelle: That's correct, Your Honor.

Justice Souter: Okay.

Justice Breyer: And the limitation by the way in--

Justice Ginsburg: --But if you... but if you spread to other prisoners, then you're going beyond the constitutional right that you've identified as intimate association.

I understand that for family.

But just a friend who is an ex-prisoner.

How does that come with intimate association?

Mr. LaBelle: May I answer the question, Your Honor?

Chief Justice Rehnquist: You may answer the question briefly.

Mr. LaBelle: I think that the general right there was both a general associational right that you have to companionships with loved ones as well as an equal protection argument.

Chief Justice Rehnquist: Thank you, Ms. LaBelle.

Mr. LaBelle: Thank you, Your Honor.

Rebuttal of Thomas L. Casey

Chief Justice Rehnquist: Mr. Casey, you have 4 minutes remaining.

Mr. Casey: I would just like to clear up a couple of points initially.

This case is not about visits from lawyers or clergy.

It's not about custody level.

Persons can be or prisoners can be in minimum custody level and still have these visitor restrictions.

So when Justice Kennedy referred to solitary confinement, Justice Breyer, excuse me, we're not talking about that.

We're just talking about visitation.

And Justice Ginsburg, I stand by my earlier statements about the nature of the arguments in the initial district court proceeding as it proceeded in the first court of appeals.

The issue of a distinction between noncontact and contact visits simply didn't come up in that... in the... in those district court proceedings.

Justice Ginsburg: And do I understand your position that you don't get to any Turner against Safley question, because there's simply no right to beginning with, no right that can be shown?

Mr. Casey: That's our initial position, yes.

The limitation to contact... or to noncontact visits is not a panacea.

Children still present problems of the... they have unique risks and burdens.

When a guard and a visitationer is watching a child, they're distracted from watching some other visitation.

The Michigan prison system, most facilities with multicustody levels have one large room for visitation.

They have tables and chairs for the contact, along one wall, there will be vending machines and along another wall, there will be one or two of these temporary booths.

And noncontact prisoners are brought through the contact room to that booth.

Visitors for the noncontact prisoner are brought through the contact room.

There's ample opportunity for exchange of contraband and visibility of other activity that's going on in this one room.

With respect to the argument about content-neutral regulations regarding children, prison officials are entitled to make categorical decisions.

The decision here is that it's better to permit the quality close visits based on a parent-child relationship, partly because of limitations on time as Justice Scalia alluded to, there were overcrowding problems before the regulations were put into effect.

All of the wardens testified after the regulations were put into effect, the conditions were noticeably better.

In closing, I would just like to emphasize, that the... the judgment of the corrections officials here was a valid exercise of their informed discretion regarding the conditions of confinements.

The courts should have deferred to that, this Court has recognized deferral to, deference to prison officials as an important factor.

And in summary the court of appeals should be reversed.

Justice Breyer: If you have a minute, I have one factual question?

Mr. Casey: I would be happy to.

Justice Breyer: From the brief from the respondents, I just want this clarified, there are a certain number of prisoners who have families and they have children, but they aren't legally married.

Now from the briefs, I had the impression that visits are allowed by those children, even though they're not legally married, unless parental rights have been terminated.

But from respondents' argument, I had the impression that you could not have a visit from such a child, period, unless you went through some formal adoption procedure.

Which is it?

Mr. Casey: The... a child of a prisoner is entitled to visit if they're brought by a member of the immediate family or a legal guardian.

Justice Breyer: Whether they're married or not married?

Mr. Casey: That's correct.

Justice Breyer: Thank you.

Chief Justice Rehnquist: Thank you, Mr. Casey.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Ewing v. California - Oral Argument

Fri, 09 Jan 2009 14:50:40 +0000

Case:

Ewing v. California

Media File:

01-6978_20021105-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Quin Denvir

Chief Justice Rehnquist: We'll hear argument now on number 01-6978, Gary Albert Ewing versus California.

Mr. Denvir.

Mr. Denvir: Mr. Chief Justice, and may it please the Court: In March 2000, Gary Ewing walked into a Los Angeles pro shop, took three golf clubs, stuck them down the pants legs, and walked out

He was quickly apprehended for that crime.

For that crime...

Chief Justice Rehnquist: What was the value of the golf clubs?

Mr. Denvir: Because the value of the golf clubs was approximately $1200, it was grand theft under California law.

For grand theft, as a general matter, California provides a maximum sentence of three years.

It also... because Mr. Ewing had served a prior prison sentence, he would be subject to a recidivism enhancement of one year, so the maximum sentence that he would have faced under California law, but for the so-called,would have been four years in prison, which could have been reduced by one-half by his conduct in prison and his work in prison.

However, because Mr. Ewing had a prior conviction for first-degree burglary, which has been classified as a serious felony by California, and for robbery, which has been classified as a violent felony by California...

Justice Scalia: Was it armed robbery?

Mr. Denvir: He was armed with a knife at that time.

And because of those two convictions, he came under the Californialaw.

And as a result of that, he received a sentence of life imprisonment and with a... with an added bar that he could not even be considered for parole for 25 years.

Justice Kennedy: Would it be fair to add that another reason for the sentence was that the judge did not disregard the priors, and that was because the judge had the record in front of him and the record showed other... a history of other offenses?

Would that be a fair statement?

Mr. Denvir: It is correct, Your Honor.

It... the judge did have discretion to strike the priors or to reduce this wobbler offense to a misdemeanor.

She declined to do so, partly on the basis of his prior record.

His prior record were all misdemeanor convictions prior to that time.

But...

Justice Kennedy: They were all misdemeanors?

Mr. Denvir: Yes, Your Honor.

All his... he had... the prior convictions that he had were felonies were four felonies, all occurred within one year, in 19... in one month, in 1993.

There were three first-degree burglary convictions, and then there was one robbery conviction.

He had other...

Chief Justice Rehnquist: Well, now, those surely are not misdemeanors.

Mr. Denvir: No, Your Honor.

I was... I thought Justice Kennedy's question was directed not to the... what they call the,but to the fact that he did have other...

Justice Breyer: Oh, other than...

Mr. Denvir: previous crimes that were misdemeanors.

Chief Justice Rehnquist: other than the burglaries.

Mr. Denvir: I think that's... the sentencing judge relied on that, to some degree, in denying him any discretionary...

Justice Scalia: Now...

Mr. Denvir: relief.

Chief Justice Rehnquist: it actually went back to 1984, didn't it, with grand theft in '84, grand theft in '88?

Mr. Denvir: Your Honor, the grand theft actually was a misdemeanor, as we've shown in the appendix to our reply brief.

There was... there was a misconception that that was a felony.

And in fact, it was a misdemeanor in Ohio, the first...

Justice Ginsburg: That was the Ohio offense.

Mr. Denvir: I...

Chief Justice Rehnquist: The...

Mr. Denvir: I'm sorry.

Justice Ginsburg: the one that was alleged to be a felony, I think, in the government's brief...

Mr. Denvir: Is in...

Justice Ginsburg: I think that it was only a misdemeanor.

Mr. Denvir: In fact, we've attached the governing court records as an appendix to our reply brief that shows it was a misdemeanor.

Justice Scalia: How many... how many convictions in all, felonies plus misdemeanors?

Mr. Denvir: Your Honor, I believe that he had the four... the four prior convictions... the strike convictions, the felonies, and I think he had another nine misdemeanors, and then this present offense.

I think that's the...

Justice Scalia: And the purpose of the three-strikes law, as I understand it, is to take off of the streets that very small proportion of people who commit an enormously high proportion of crimes.

I forget what the statistics are, but it's something like, you know, of those convicted, 20 percent commit 85 percent of the crimes.

It sounds to me like your client is a very good candidate for that law.

Mr. Denvir: We got... we got...

Justice Scalia: I mean, if that's a reasonable law.

It seems to me this is precisely the kind of person you want to get off the streets.

He's obviously going to do it again.

Mr. Denvir: Your Honor, we believe that the law, in itself, is not unreasonable and it could result in a proportionate sentence.

It did not in this case.

Under this court's decision in Solem versus Helm, the Court has said that you can look to the prior record as relevant to the sentencing decision because it aggravates the present crime, but the focus must remain on the present crime.

Chief Justice Rehnquist: Well, Solem stands with Rummel and with Harmelin.

They're really three different points, and Solem is probably the case that favors you most.

But certainly Rummel is good law, and Harmelin is good law.

And I think those cases don't favor you.

Mr. Denvir: Well, Your Honor, I believe that Rummel... the Court said in Solem... the majority opinion said that Rummel would be controlling only in a similar factual situation.

We do not believe we have that here.

And as far as Harmelin was concerned, the basic principles of Solem were reaffirmed by seven justices in Harmelin and, we believe, when applied here, will show that this is a grossly disproportionate sentence.

Justice Ginsburg: Mr. Denvir, would you clarify whether your challenge is strictly as applied?

Because some of the... some of the points that you make seem to be going to the statute wholesale.

So, for example, you talk about it... the statute's infirm, because it has no washout for aging offenses, but there was no such offense at stake here.

The strikes were all rather recent.

Mr. Denvir: That's correct, Your Honor.

And...

Justice Ginsburg: So...

Mr. Denvir: and to answer your question, we are challenging only the sentence that Mr. Ewing received for the crime that he committed, that he was sentenced at.

There's much discussion on both sides of... as... I... as the background of the three-strikes law.

We have no doubt the three-strikes law could result in a... in a constitutional sentence.

It did not, in this case.

So however the scheme is that reached this sentence, this life sentence for stealing three golf clubs, that sentence is... falls under the Eighth Amendment, in our view.

Justice Ginsburg: But we... so we should leave out things like no washout, that someone who never served any time would subject to the three strikes...

Mr. Denvir: I think that's correct, Your Honor, that they don't play into this case.

And I think that... as I said, that the three-strikes law is merely... it's the process that produced an unconstitutional sentence.

It could have been produced by a different sentencing scheme, also.

Justice Kennedy: Well, when we're examining the constitutionality of the three-strikes law, as applied to this sentence, we should take into account, should we not, the purposes of the California law, which was to have a law which was... gave simple, clear notice of the three-strikes policy?

And if you want us to take case-by-case, then that whole policy is undercut, it seems to me.

Mr. Denvir: Well, Your Honor, I don't... I don't think that's true.

In Solem v. Helm, the Court made very clear that it was looking only to the sentence that was imposed on Mr. Helm.

Justice Kennedy: Yeah, I was going to ask you about that, because you had said that the principal focus has to be on this sentence.

I'm just not sure what your authority for that is when we have a recidivist scheme of this kind.

Mr. Denvir: Well, Your Honor, the... in Solem versus Helm, the Court, of course, had a recidivist scheme.

The focus there was on number of prior offenses, as opposed to the nature of the prior offenses.

The Court said that the defendant, under double-jeopardy principles, cannot be punished for those prior crimes; however, they are relevant to the... to the sentence imposed for the present crime.

And the... and the reason they are relative... and the Court said this best in Gryger versus Burke... is what they... what they... what they authorize is a, quote,

"stiffened penalty for the latest crime, which is considered to be an aggravated offense because of repetitive one. "

That's at page 8 in our reply brief.

But what Solem v. Helm made very clear is, although the prior crimes are relevant, the focus must remain, when judging proportionality or gross disproportionality, on what this... what this defendant did at this time, what he is being sentenced for at this time.

Justice Kennedy: I'm just not sure how that works.

What am I supposed to do with recidivism as a factor in analyzing this sentence?

Mr. Denvir: Your Honor...

Justice Kennedy: Give it some weight, but not controlling weight, or something like that?

Mr. Denvir: I think that what the Court can say is that his prior crimes are relevant, in the sense that they make this crime a more aggravated crime than a crime committed by a first offender...

Chief Justice Rehnquist: Well...

Mr. Denvir: and that there can be a reasonable enhancement for that.

But in this case, he has been sentenced to... he has... his sentence has gone from a maximum of three years for a first offender to life, all based on the recidivism.

Justice Stevens: Well, why...

Mr. Denvir: At that point...

Chief Justice Rehnquist: why can't the State say that... where a person has a string of convictions like this man has, that it's time to get him off the street, as Justice Scalia says, that he simply cannot conform to the law?

Mr. Denvir: Your Honor, if he, in fact, committed a crime at this point that was a serious or a violent crime, they may have a basis, but what the Court has said very clearly is that...

Justice Breyer: What...

Mr. Denvir: is the focus remains on this, because otherwise...

Justice Souter: What...

Mr. Denvir: he's being punished for the prior crimes.

I'm sorry, Your Honor.

Chief Justice Rehnquist: Well, what's the reason for saying that though... that you can only... that the focus remains on this crime, but others are relevant?

I mean, that really is kind of meaningless, it seems to me.

Mr. Denvir: Well, I don't think so, Your Honor, because, as I say, what the Court has said over the years is that the important part about the prior crimes is that it shows that this is a repeat offense.

And the fact that he has committed offenses in a row makes this particular offense worse.

The fact that he has committed worse offenses in the past does not aggravate this crime.

I... this is... this still remains shoplifting three golf clubs, regardless if he had been a triple murderer or anything else, and that's what he's being punished for.

Because if he's being punished because of those prior crimes, their nature, there's really serious double jeopardy...

Justice Scalia: What do you think would be enough?

Thirty years?

Would you like 30 years for walking off with three golf clubs?

Mr. Denvir: Your Honor, I... the... if you... if you look at our...

Justice Scalia: I mean, if you're going to look on it as just stealing three golf clubs, and cast a blind eye to his long record of criminal activity, I don't know why you can give him any more than, you know, a couple of years.

Mr. Denvir: Well, Your Honor, if you look to our... to the comparison with other jurisdictions... and I just don't think this has been highlighted in our brief... there are only... there are only five jurisdictions that would have allowed a life sentence.

There's only one additional jurisdiction, Montana, that would have allowed a term of years as great as the minimum sentence here, and that's... Montana allows... is five to a hundred years.

And most states allow for either grand theft or recidivist grand theft...

Justice Breyer: But we said...

Mr. Denvir: ten years at the most.

Chief Justice Rehnquist: we said in Rummel, there's always going to be some state that punishes more harshly than others.

And certainly it was not intimated that that state, therefore, would... it was cruel and unusual.

Mr. Denvir: No, that's correct, Your Honor.

In Solem v. Helm, the Court noted that he could... that Mr. Helm could have received a comparable sentence in one other state, and nevertheless held that it fell under the Eighth Amendment.

Justice Kennedy: Well, just help us one more time.

The prior history is relevant, but then how relevant?

Mr. Denvir: Well, Your...

Justice Kennedy: You say the principal focus has to be on the three golf clubs, like we're some judges out of Victor Hugo or something and that's all we have to focus on.

But this... there's a... there's a long recidivism component here, and that's the whole purpose of the California law that you're asking us to ignore, it seems to me.

Mr. Denvir: Your Honor, and... what I'm saying is... I'm going back to what the Court said in Solem v. Helm in its analysis, which I think is controlling here.

It made... it made the point that the... the prior convictions... he cannot be punished for those, but they do aggravate this present crime that he's being punished for.

And the way they aggravate it is that... is that this shows that it's a repetitive offense.

Now, he can have a reasonable enhancement of the normal penalty for grand theft based on the repetition aspect of it, but at some point it becomes unreasonable.

And it becomes unreasonable if you go from three years to life based on his prior crimes.

At that...

Justice Scalia: Why isn't is reasonable to say if he commits another felony... he's committed, you know, three already and nine other convictions... ,California tells him,

"and you go away for life. "

Why isn't that reasonable?

And this... and this was a felony.

Mr. Denvir: Because of the nature of the crime that he committed, which is stealing three golf clubs, a crime that is not deemed either serious or violent under California law.

Justice Scalia: But is a felony under California law.

Mr. Denvir: It is a felony.

It's actually a wobbler and could be charged either way.

Justice Breyer: Why...

Mr. Denvir: But in this case, it's a felony.

Chief Justice Rehnquist: Why can't California decide that enough is enough, that someone with a long string like this simply deserves to be put away?

Mr. Denvir: Well, Your Honor, if that were true, then there would be no limiting principle on recidivist laws under the Eighth Amendment.

It would... at that point, you could say the mere fact that he broke any law... if he broke a traffic offense... a petty offense would show that he couldn't follow the law and could get a life sentence.

Justice Scalia: Oh, I'd be with you there, if it was a misdemeanor or, you know, some... but this is a felony under California law.

Mr. Denvir: It is a felony, and it's one of the least grave felonies in California.

Justice O'Connor: But we have given... we've said, at least, here, that we are going to give great latitude to state legislatures in determining how many years to give, and how to categorize an offense.

Why don't... why don't we look to the Harmelin case for the standards, rather than Solem?

Harmelin came later.

Mr. Denvir: Well, Your Honor, I think you do, because, as I understand the Harmelin case, if you take the dissent and the plurality, they both agreed on the basic principle here, which is that there cannot be gross disproportion between the offense and the sentence.

And the reason I go back to Solem versus Helm is that it was a recidivist case and there was some further information.

I don't... as I read the Court's opinion, at least the plurality opinion, in Harmelin, the big change was that you would... you would not look automatically to intra-jurisdictional or inter-jurisdictional comparisons.

You would first have to find an inference of gross disproportionality before you'd go to the second... the other two steps.

That's what I understood to be the major... the major refinement of Solem v. Helm that was in the plurality opinion.

Justice Breyer: I'm slightly stuck on this, because I... I'd like... there is some relevant information that I can't get a hold of, and you may some in your experience, but it isn't in the brief.

Imagine... let's take the set of people who have committed at least two serious crimes or more, maybe 50 serious crimes.

They're very serious criminals.

And they're warned,

"If you do anything again, you've had it. "

So think of that set of people.

Now, I would like to know, in light of that set of people, now one of the members of that set commits a crime equal to stealing $1200... whether they steal $1200 or equal to that; that's a very subjective judgment... what's the longest sentence such a person has ever actually served?

Here, they are going to 25 years, real years.

And the second question I'd like to know is, What is the least bad crime that such a person ever committed who did serve 25 real years?

Mr. Denvir: Well, Your Honor...

Justice Breyer: I'd like to know both of those things.

And, obviously, they're find-outable.

Mr. Denvir: I... let me see if I can answer your question.

As far as under the three-strikes law, there is... because it sets this absolute minimum of 25 years... it's a life sentence, but it adds a kicker to it which says, unlike other life sentences, you have to wait at least 25 years before you can even be considered.

So we... since this law was passed in 1994, we have no experience with this law.

Justice Breyer: Obviously, I don't want experience...

Mr. Denvir: Right.

Justice Breyer: under this law.

That would be circular.

Mr. Denvir: Well, Your Honor...

Justice Breyer: What I'm looking for is, in the absence of this law...

Mr. Denvir: Oh, I'm sorry.

I understand...

Justice Breyer: in the absence of this law, what is the longest sentence a person like yours... and I'm definingto be a really bad criminal who now will commit another crime equal to or the same as stealing $1200.

And there's loads of records... I mean, in the California Adult Authority before this law was passed, et cetera.

And the second question is, What is the least bad thing such a person who really served 25 years did?

Mr. Denvir: Your...

Justice Breyer: That... those are empirical questions, and you're talking about this being unusual.

I don't know if it's unusual unless I know what happened to other people.

Mr. Denvir: Well, Your Honor, I don't... I... there's nothing in the record that would answer that, but let me see if I can answer it in a different way.

But for the three-strike law, Mr. Ewing, with his record, could receive no more than four years.

Now, there are other recidivist laws in California besides the three-strike law.

Justice Breyer: Under the California Adult Authority, which was only the law in California for 70 years, people could receive very, very, very long sentences.

Mr. Denvir: They could, Your Honor, and California is...

Justice Breyer: And... not this long for this thing, but... but... but...

Mr. Denvir: I think that's right.

I think the long sentence... the... California substituted determinate sentencing law for indeterminate in 1977, and... but under the old indeterminate sentencing law, my clear recollection is that those long, indeterminate sentences were always triggered by serious or violent felonies, and that is something that...

Justice Breyer: No, they... I've looked it up, actually...

Mr. Denvir: No?

Justice Breyer: and you're quite right that this is not as... you couldn't get this long a sentence, but you could get a pretty long one for being a third offender and committing a property crime.

Mr. Denvir: And...

Justice Breyer: But I... that doesn't tell us how long the people actually served.

Mr. Denvir: Well, Your Honor, if you look for the question of parole in California, which the... which the State suggests is... saves his life sentence, the Court looked at this in 1995 in the case California Department of Corrections versus Moralez.

And what the Court said at that time was that 90 percent of all defendants who came up for their first parole hearing were found unsuitable for parole and that 85 percent were found unsuitable at subsequent hearings.

Now, that has not improved any, because, as you'll see in the amicus brief of Families Against Mandatory Minimums, at page 18, as of 2000, the Board of Prison Terms, which is the... which is the parole authority... their official records show that they only recommended parole in 1 percent of the 2000 cases that came before them with a life sentence.

Justice Scalia: Mr. Denvir, can't the people of... this thing, by the way, was not adopted by the legislature, was it?

It was adopted by plebiscite, of the people of California...

Mr. Denvir: By both, Your Honor.

Justice Scalia: By both.

Mr. Denvir: Both by legislature and by...

Justice Scalia: By plebiscite.

So the people of California decided,.

hy do we have to be bound by whatever the more permissive scheme was earlier?

Mr. Chertoff: The people of California knew that scheme, and they decided,

Justice Scalia: "This is no good. "

"We still have too much crime. "

"We're not punishing people enough, or we're not keeping them... keeping them incarcerated long enough. "

Why do we have to be bound by whatever the previous record was?

Mr. Denvir: Well...

Justice Scalia: It seems to me the question before us is, Is it unreasonable to put away somebody who has this record?

Mr. Denvir: Your Honor, first of all, as to the question of initiative versus legislation, it is my understanding that the Court, in other areas, has said that there's no greater deference given to one than the other.

But the other question is, there's no doubt that some deference has to be paid by this Court to legislative judgments or initiative judgments in the questions of punishment and in dealing with recidivists.

The Court has made that very clear.

But it is that deference that has led to the Court setting a very forgiving standard.

The Court said that it would not require, in this area, or as excessive fines, strict proportionality between the crime being punished and the sentence.

It has said it was only when there was a gross disproportion, and that's a very deferential standard.

That is a standard that allows the legislature to make many reasonable judgments, but says that...

Justice Ginsburg: So how do you decide...

Mr. Denvir: some judgments are unreasonable.

Justice Ginsburg: how much is too much?

Mr. Denvir: Well, Your Honor...

Justice Kennedy: What's the...

Mr. Denvir: life imprisonment for... for the crime of stealing three golf clubs, we believe, is cruel and unusual punishment.

Justice Breyer: It's not life imprisonment.

But we're just doing...

It's 25 years.

Mr. Denvir: Your Honor...

Justice Breyer: It's 25 years that he'll really serve.

We know that.

As far as... what happens after those 25 years is a matter of parole or a decision by other people.

Mr. Denvir: Your Honor, the sentence that he's been given is life in prison.

He's been consigned to die in prison unless some administrative agency determines to let him out.

And as I've just quoted you...

Justice Breyer: But I mean, parole, in all the cases you're citing, is relevant, so you can describe it as you want.

We both know what the facts are.

The facts are he has to be in jail for at least 25 years, and then he might be paroled.

Mr. Denvir: And he might be, but on... there is no... there is nothing in this record that would suggest he has a reasonable expectation in that regard.

In fact... in fact, what's before the Court would suggest that there is not a reasonable expectation, particularly if the animus that drives... that drove the passage of this law continues for 25 years and they still think,

"Well, gee, if they committed these prior crimes, they ought to be locked up for life, because they may commit other crimes. "

Justice Ginsburg: In the statistics that you were quoting, though, those were not three-strikes cases.

Mr. Denvir: Those are not three-strikes cases.

Justice Ginsburg: Those are cases where people might have gotten reduced time for good behavior...

Mr. Denvir: That's correct.

Justice Ginsburg: none of which is... and one question I wanted to ask you, In view of the infirmities of Mr. Ewing... is he still alive?

Mr. Denvir: He is alive, Your Honor.

He is...

Chief Justice Rehnquist: Counselor...

Mr. Denvir: he's lost... he's aged and has lost eyesight in one eye as a result, but he's still alive at this point...

Justice Breyer: How old was he at the time of sentence?

Mr. Denvir: He was 38 years old.

He's 40 years old now.

So...

Justice Scalia: Counselor...

Mr. Denvir: as a practical matter... I mean, this... 25 years is probably a life sentence for him, unless there's some major medical development that...

Justice Souter: Mr. Denvir, you conceded a moment ago that the prior offenses can be considered for purposes of treating this offense as an aggravated offense, given the prior record; and yet when you answer... you've done this more than once... when you have answered the question of going to disproportionality, you have said,

"It's 25 to life for stealing three golf clubs. "

I don't think you can have it both ways.

Either your argument is it's 25... the appropriate comparison is... or the appropriate characterization is

"25 to life for three golf clubs. "

in which case you, in effect, are telling us,

"Ignore the priors; they don't aggravate. "

or you've got to say,

"It's 25 to life for stealing three golf clubs when you have a prior record. "

whatever it was, nine prior offenses, including four felonies, in this case.

Which is it?

Because I assume it may well affect the result.

Mr. Denvir: Your Honor, I... if... I misspoke.

What we say is the focus must be on the present offense.

It is an aggravated offense.

He is a repeat...

Justice Souter: But when you said that...

Mr. Denvir: a repeat offender.

He is a repeat offender.

He is someone who committed this offense with a prior record of offenses.

Justice Souter: Is it inconsistent with your position... when you say,

"The focus must be on this offense. "

is it inconsistent with that to say,

"This offense... is stealing three golf clubs worth $1200 by somebody with a prior record of nine offenses? "

Is that consistent with putting the focus on this offense, in the terms that you're using?

Mr. Denvir: I think it is, in the sense that it shows that there has... there has been some... there has been a series of repetition.

But what I'm suggesting to the Court is that regardless of the repetition, the fact that it's a repetitive offense, if the focus remains on what he did now, the triggering offense, which, under Solem v. Helm, is the focus, then no matter what he has done in the past, no matter how much repetition, it is... it is grossly disproportional to sentence him to a life sentence.

At that point...

Justice Souter: A hundred prior instances of stealing three golf clubs would not affect the analysis then on your view?

Mr. Denvir: Your Honor, if there... if there were a... if there were a series of crimes of the same nature... for instance, if there...

Justice Souter: Well, I've just... I've just given you one.

Mr. Denvir: Yes.

Justice Souter: A hundred prior... three golf clubs every time, a hundred times... would that justify the treatment that he has gotten?

Mr. Denvir: Your Honor, I think that that would... that would show a propensity to steal golf clubs, but, again, I don't believe...

Justice Souter: I would concede that, but the...

Mr. Chertoff: [Laughter]

Mr. Denvir: I don't believe...

Justice Scalia: Posit further that his score has not improved.

Mr. Chertoff: [Laughter]

Mr. Denvir: He shouldn't be penalized for that.

That may be beyond his control.

Justice Souter: Okay, but if we... if we've got our crazy example of a hundred priors exactly like this, and we follow your verbal criterion at least of focusing on this event as aggravated, would this be disproportionate, grossly?

Mr. Denvir: I believe that life is, because it is still... the crime that has to be punished... I mean, and this is what the Court said in Solem v. Helm... this is...

Justice Souter: Well, maybe we were trying...

Mr. Denvir: you know, in Solem v. Helm...

Justice Souter: maybe we were trying to have it both ways verbally because we were imprecise.

But with respect, I think that's what you're trying to do.

Because on the one hand, you concede, yes, it may regarded as an aggravated offense in light of the priors, and then in the next breath you say,

"But the focus has got to be on this offense. "

Mr. Denvir: Your Honor, I... Your Honor, there's no doubt that the prior record... and the Court has said that is relevant to the punishment for the present crime, and it does aggravate it.

But there are limits to how aggravated shoplifting three golf clubs can be, no matter what has happened before...

Justice Souter: Even with the hundred prior instances?

Mr. Denvir: Your Honor, it's still three... it's still stealing three golf clubs.

It's not robbery, rape, murder, or something of that nature.

I mean, it is... it is still there.

I mean, the... to raise your question, what if someone had a long history of jay-walking and had seven or ten or a hundred convictions for jay-walking and jay-walked again?

I think the Court would not say you could get a life sentence for that just...

Justice Souter: I don't...

Mr. Denvir: because it's repetitive.

Justice Souter: I don't think it would.

And the reason it wouldn't is... I assume you would concede... is that jay-walking does not hurt other people the way 100 instances of stealing golf clubs worth $1200 hurts other people.

Mr. Denvir: It hurts in the sense that it's a property crime and causes...

Justice Scalia: Well, you know, and...

Mr. Denvir: a loss, that's correct.

Justice Scalia: and may lead to something beyond property crime.

Isn't grand larceny much more likely to result in physical confrontation and...

Mr. Denvir: Your Honor, I...

Justice Scalia: physical injury than jay-walking?

Mr. Denvir: Your... it is... it is, Your Honor, and I think...

Justice Scalia: Which is why it's a felony.

Mr. Denvir: and I think that if there had been some... some violence that had actually occurred out of this, then he undoubtedly would have been punished under a different statute with higher...

Justice Breyer: It's a serious crime, in part because of that... in part because of the risk of physical confrontation that he poses.

Mr. Denvir: But Your Honor, California determined that when it set the ranges for grand theft...

Chief Justice Rehnquist: Would you like... would you like to reserve time, Mr. Denvir?

Mr. Denvir: If the Court has further questions, I'd rather answer the questions...

Chief Justice Rehnquist: Very well...

Mr. Denvir: than reserve time.

Chief Justice Rehnquist: Very well.

You asked for it, you...

Mr. Denvir: California considered that when they set the penalties for grand theft.

And they set the penalty as a maximum of three years in prison.

If they set different penalties for grand theft from a person, and for robbery, there is... there is... all those things are taken into consideration here.

And the fact that this could have eventuated into something else, the fact of the matter is that it did not.

And in fact, if anything, Mr. Ewing seemed to be doing everything he can to be... to get out of there undetected, if that... if you look at the facts of this crime.

Justice Stevens: I'm curious about one thing.

Was he really a very tall man, or were these irons rather than wood?

Mr. Chertoff: [Laughter]

Mr. Denvir: Your Honor, to tell you the truth, I have no idea how he could have done that.

It seems to me a miracle that he could have... actually got out the door, but he apparently did.

He's not a very tall man, as I recall.

Justice Scalia: It is a good thing that walking is not an essential part of golf, because otherwise walking with those...

Mr. Denvir: I think...

Justice Souter: golf clubs in his pants would have been very difficult.

Mr. Chertoff: [Laughter]

Mr. Denvir: I think he was planning on removing them before he used them, I take it...

Justice Stevens: He took a golf cart out to the car.

Mr. Chertoff: [Laughter]

Mr. Denvir: Your Honor, I would reserve any additional time, unless there's additional questions.

Chief Justice Rehnquist: Very well, Mr. Denvir.

Mr. Denvir: Thank you.

Argument of Donald E. De Nicola

Chief Justice Rehnquist: Mr. De Nicola, we'll hear from you.

Mr. De Nicola: Mr. Chief Justice, and may it please the Court: First, I think, in answer to Justice Breyer's question, I don't know what the statistics are under the old indeterminate sentencing law that was in effect in California until 1976

But in a way, I think the... Your Honor's question triggers an issue that I think is central here.

The ISL, the old California law, was premised very explicitly on a penological theory that emphasized rehabilitation of the offender.

I think the question that's raised in this case, and it's a question that's particularly apt in light of the Harmelin opinion, is, When can a state decide that they're going to move away from a more lenient policy of rehabilitation or extending leniency to a first-time offender, and move toward a policy, a tougher policy, of incapacitation?

Justice Breyer: So, tell me, am I fair to say assume there never, in the history of the United States, has been a person who... of the set... I'm only... I don't want to be pejorative; I want to characterize it your way, and I'll characterize it as taking the set of very serious criminals with very serious records, and a person in that set commits another crime, and the other crime is approximately theft of $1200... and am I fair in saying there hasn't been, ever, a sentence in the history of the United States in the last hundred years anywhere close to this one?

And I base that on my knowledge... which you could get; it's public... of 35,000 real cases in the federal system where to get a sentence like this one for a prior offender, you had to... you have to now, you know, hijack an airplane, commit murder, something really serious beyond belief compared to this, and that the worst sentence you could get for something like this is about four, five years.

And then I look to the California Adult Authority, and I see, under that sentencing, nobody could have gotten more than ten real years, and, indeed, the average was somewhere around five.

And you have all those records, and you have come up with nothing in your brief.

And therefore, can I say... my assumption is, this is by an order or factor of two or three times higher than anyone ever was sentenced before in the United States for such a thing?

You see, I'm making a very extreme statement empirically, and I want to know what the response is to my statement, and I want to know why I shouldn't hold you to my statement since you have the information, and why I shouldn't say that's just way too much.

Mr. De Nicola: Well, again, Your Honor, I... the... my answer is that I do not know what those records would have shown.

Justice Scalia: I guess he shouldn't hold you to it, since you don't have the burden of persuasion here, do you?

I thought you're defending a... a decision below.

Mr. De Nicola: Yes, and I did interpret the issue to be a proportionality issue rather than an unusualness issue.

But I do... something in the recesses of my mind tells me that we had a three-time loser statute in California, and I think that put people away for life without parole.

Justice Breyer: Well, all right, how do we decide... how do we decide if you say, of this serious set of criminals, you go to jail for life if you jay-walk... I mean, the next time.

Is that... is that disproportionate?

How am I supposed to say what is or was... is not if I don't look to the empirical facts?

And I'm not holding you to present empirical facts.

I'm just saying, Why shouldn't I decide on the basis of empirical fact that is available?

Mr. De Nicola: Well, in our view, the most prominent, kind of, objective factor that this Court could look to in weighing this sentence is what the legislature has said are felonies.

What California has done in this case is, they've narrowed their target to a subclass of felons who have committed what the legislature has deemed to be... and I think what, on the face of it, can reasonably interpreted as being... serious or violent crimes.

Chief Justice Rehnquist: What's the limit for being... what is dividing line between grand theft and petty theft in California?

Mr. De Nicola: Four hundred dollars, Your Honor.

Chief Justice Rehnquist: When I went to law school, it was $100, except if it was citrus that you stole, it was $50.

Mr. Chertoff: [Laughter]

Mr. De Nicola: Now it's $100 if it's citrus.

[Laughter]

But once there is that predicate of serious or violent felonies set in place, then what the three-strikes law does is, I think, reasonably moves toward a policy of incapacitation upon the commission of, not just any new crime, not a misdemeanor or an infraction, but a new crime that the legislature has...

Justice Stevens: One of the things that puzzles me about the statute... maybe you can enlighten me... I thought that if there were two priors that were violent but not related to property, such as murder and rape, that the third related to property wouldn't trigger the statute.

Mr. De Nicola: No, Your Honor.

The way the statute is written is that if the prior felonies meet the statutory definition of being serious or violent... if you have two of those, then any new felony triggers the three-strike sentence.

Justice Stevens: Even if you... if you had, say, a murder conviction and a rape conviction and then you committed a wobbler that was a property crime?

Would the statute treat that as a third strike?

Mr. De Nicola: Yes, because wobblers are felonies, by definition, in California, and any felony qualifies.

Justice Stevens: Regardless of the character of the first two strikes.

Mr. De Nicola: As long as the first two strikes meet the level of being serious or violent, which...

Justice Stevens: I see.

So... and there's no requirement that it be related to property.

I misunderstood.

Mr. De Nicola: No, Your Honor.

Justice Scalia: All right.

Justice Breyer: Also, I don't know how to work with felony and misdemeanor, because, across the nation, my impression is that those are classified in very different ways, and they are classified sometimes according to the prison that you serve in, as in Massachusetts, and sometimes you can find a felony that, in ordinary common sense, is a lot less serious than certain misdemeanors.

That's why I'm very pushed to know what to work with unless you work with empirical fact.

Mr. De Nicola: Well, we... in California, the felony is defined by the... not just the locus of where the term will be served, but also by the length.

It's more than a year.

And we think that that's a traditional line of demarcation between offenses that, over the course of time, society deems to be of elevated seriousness.

Justice Scalia: I think some of our constitutional jurisprudence makes it... makes... turns upon the distinction between felonies and misdemeanors, doesn't it?

Mr. De Nicola: Yes, Your Honor, I think that is so, and there are political restraints on the legislature in enacting laws in general applicability.

There are certainly economic restraints on a legislature in deciding to set a punishment scheme that provides for long terms of imprisonment.

That's costly.

And that to... for a court to second-guess that, comes, we think, perilously close to the court suggesting that the legislature can, in some instances, not declare a certain crime to be a felony, but must declare it to be a misdemeanor, and we don't think there's anything in the Court's jurisprudence that would... that would support that type of an intrusion.

Justice Ginsburg: Mr. De Nicola, there's a lot of discretion built into this scheme.

It comes across as three strikes and you're out, and that's it; but it's not.

There's discretion in the prosecutor and discretion in the judge.

Are there, in Los Angeles or in California, any guides to prosecutors in exercising their discretion, say, whether to treat a wobbler as a misdemeanor or a felony?

Mr. De Nicola: There are no statewide standards.

Each elected district attorney in the various counties in California has the option of promulgating guidelines.

Some of them have.

And the fact of the matter is some of them... some of them differ.

We think that's a rather unremarkable event in light of the fact that prosecutorial discretion is always going to lead to some sort of different approach depending on local conditions.

But there is not, as far as I know, any statewide guideline, and certainly nothing that would be binding on the local prosecutors.

Justice Ginsburg: The prosecutor can charge something as a misdemeanor.

As far as the striking a strike is concerned, is that solely for the judge?

Or, I suppose, it depends on what's charged.

The prosecutor can decide not to charge two strikes.

Mr. De Nicola: Yes, the prosecutor, under the statute, is required to allege the priors, but the prosecutor may seek dismissal of the prior strikes either in the furtherance of justice, or because of problems of proof.

But the judge also has authority to strike strikes, even without the consent of the prosecutor, in California.

And so...

Justice Ginsburg: And similarly, to reduce a wobbler to a misdemeanor.

Mr. De Nicola: Yes, the prosecutor, in a way, has that discretion, because he or she can charge a... an alternative felony or misdemeanor as a misdemeanor in the first place, but even under the three-strikes law, the trial judge retains the discretion to sentence a... an alternative felony misdemeanor as a misdemeanor, and that would take the case out of the three-strikes scope.

Justice Stevens: May I ask you a question about your theory of the limits of the constitutional protection here?

Supposing the offense was speeding... and it can be dangerous speeding... and you had a... you said that... 15 arrests for speeding gives you this very sentence we got in this case.

Would that be permissible, do you think?

Just on the theory that Justice Scalia has explained... where this guy is just too dangerous, we just don't want him on the street anymore, so we'll put him in jail for life, 25 years without possibility of parole.

Mr. De Nicola: Well, we think that might possibly be constitutional, Your Honor.

I...

Justice Stevens: Possibly be constitutional or unconstitutional?

Mr. De Nicola: Might possibly be constitutional.

I think it's more likely that it would be...

Justice Stevens: Well, why wouldn't it clearly be constitutional if we're thinking about protecting the public from repetitive offenders?

Mr. De Nicola: Well, because I think the limiting principle that we're seeking here, Your Honor, is one that's premised on the felony classification.

If the...

Justice Stevens: Do you think the statute would have been unconstitutional if they had said it's a misdemeanor when it's $1200... if the legislature just, say, called the three golf clubs for $1200 by a misdemeanor instead of by felony, would that change the constitutional analysis?

Mr. De Nicola: It... I think it would make the constitutional... it might change the constitutional analysis.

It might make the result different.

I think, again, once you have the predicate in place of the serious or violent felonies, then I think the reason you're...

Justice Stevens: But serious or violent... it really doesn't have to be violent; it has to serious.

But you could have had $1200 thefts, four or five of them, and he would still qualify, wouldn't he?

Mr. De Nicola: No, Your Honor.

If... the prior crimes have to qualify as serious or violent under the definitions of a separate statutory scheme, so they would not...

Justice Stevens: But are there not serious crimes that are not violent?

Mr. De Nicola: Yes, I think that's true.

There are serious crimes where no injury is inflicted, but the crimes, I think, by their nature, tend to be crimes where the prospect of violence is rather imminent.

Justice Stevens: But they're... I'm just trying to... I'm trying to understand the theory.

Is violence an absolute requirement, in your view, in one of the priors?

Mr. De Nicola: No, I think... I think...

Justice Stevens: Okay.

So then we could have something equivalent... maybe instead of $1200, $2000 or something.

But if you just had five... or three or four $2,000 burglaries, that... do you... would that be permissible to put him in jail on the same sentence that you have in this case?

Mr. De Nicola: I... again, Your Honor, I... it's a... it's a much tougher call.

I think it might be permissible to do it, provided that the sentence allows for a possibility of parole, after the...

Justice Stevens: After 25 years.

Mr. De Nicola: Yes.

That would distinguish it from Solem, Your Honor.

But nevertheless, here, the predicate, even though the prior crimes don't necessarily have to involve the actual infliction of violence, they are crimes that by their nature...

Justice Stevens: But in your view, violence is really more significant than the number of prior offenses, if I understand you correctly.

Mr. De Nicola: Well, I think it might be a sliding scale, but I think violence does play a significant role and can justify a scheme like this, even in the absence...

Justice Stevens: Okay.

Mr. De Nicola: of a great number of priors.

Justice Stevens: But you... but I'm not quite sure what your view would be if there were no violence, but just seven or eight high-speed offenses, say, speeding, or $1200 golf clubs.

Mr. De Nicola: Well, we think a lot would depend on whether the legislature in the jurisdiction had determined for... for... on an historical basis and for reasons independent...

Justice Stevens: Well, speeding is dangerous.

People get hurt in automobile accidents.

It seems to me it's exactly the same risk to the public that you have with this kind of crime.

Mr. De Nicola: But we think... if the legislature declares those to be a felony, then I think we become a lot... we come a lot closer to...

Justice Stevens: It depends on what the legislature calls the offense.

Mr. De Nicola: Yes, it does, Your Honor, in a very significant respect, because what the legislature calls the offense in connection with it being a misdemeanor or a felony does reflect, we think, a reliable longstanding consensus of the... of the community.

And under the Harmelin principles of deference and reliance and objective factors, we think that's a prominent objective factor.

Justice Breyer: On Justice Stevens' hypo, taking it one step further, I guess we would have to say that if there were 15 prior speeding offenses, and they had been classified as felonies in California, that there was no disproportion between 25-to-life for 15... with a predicate of 15 prior speeding offenses, on the one hand, and the penalties for torture and murder, on the other hand.

Because I think it's undisputed that the only standalone penalties that are this great are the penalties for torture and homicide.

That would be rather a stretch, wouldn't it, regardless of whether the legislature wants to put a felony label on them or not?

Mr. De Nicola: Well, again, Your Honor...

Justice Breyer: Speeding's important, but...

Mr. De Nicola: Yes.

Justice Breyer: I mean, torture and murder?

Mr. De Nicola: I do think that it is a much tougher case for us, and I'm not at all certain that it would be constitutional if all of the crimes, the predicate through the new crime, were simply speeding.

I think...

Justice Ginsburg: Might it be an abuse of the judge's discretion not to reduce such a... if it's a wobbler, in such a case, or not to strike a strike?

Mr. De Nicola: Well, I don't... in the California context, the question would only arise... well, I don't think it would arise at all, because you wouldn't have a speeding... even as a predicate, any felony-triggering events, and the speeding wouldn't qualify as a serious or violent felony under the statute anyway.

So this hypothetical is very far removed from the three-strikes scheme that California has in place.

Justice Scalia: I would have thought that your response to Justice Souter would have been that it might seem disproportionate insofar as the penal goal of punishment or retribution is concerned, but it depends on what you want your penal goals to be.

California has decided that disabling the criminal is the most important thing, and in... from that point of view, it's not necessarily disproportionate.

The one is disabled as the other.

Mr. De Nicola: Well...

Justice Scalia: I mean, proportionality... you necessarily have to look upon what the principal objective of the punishment is.

If the objective of... if the objective is retribution, then, sure, I guess it's disproportionate to execute somebody for killing only one person, when you do no more than execute somebody for killing 20 people.

But if your purpose is disabling the criminal, I'm not sure that it... that the example that Justice Souter gave is disproportionate.

Mr. De Nicola: Well, again, Your Honor, I don't... I don't think I would absolutely concede that it would be unconstitutional.

I'm just saying that...

Justice Souter: Well, do you adopt Justice Scalia's analysis?

I mean, this came up in the briefs, and this was an interesting point.

Does the State, for purposes of proportionality analysis, have the option to adopt a different theory of penalty?

And he's given an example.

Do you... do you adopt that argument here?

And do you think that is a justification that you want to rely on in this case?

Mr. De Nicola: Yes, we do adopt the theory of incapacitation, and we do rely on incapacitation as a theory that justifies the sentence in this case.

Justice Souter: All right.

Here's the problem that I have with that, and this is... this is... this is what I wish you would address.

If we allow, for purposes of proportionality or gross disproportionality analysis, this kind of... the consideration of varying intentions... retribution, incapacitation, deterrence, and so on... and every time the State gets to a very high offense, the State says,

"Oh, we've changed the theory. "

"We've gone from deterrence to retribution. "

it seems to me that it makes this kind of analysis of comparables... this proportionality analysis... impossible because we no longer have two comparable entities on either side of our comparison.

What we have is a low sentence on the one hand for deterrence, and a high sentence for incapacitation or retribution.

We have apples and oranges instead of oranges and oranges.

So my question is, If we accept the State's option to say,,don't we read comparability analysis right out of the law?

Doesn't it simply become logically impossible?

Mr. De Nicola: Well, I think it becomes much more difficult, but I don't think it necessarily becomes logically impossible, because I think there is still room for judicial scrutiny, within the context of the Harmelin narrow proportionality principle, to take a hard look...

Justice Souter: But my problem is, I don't know what we're supposed to... what we can compare for comparable examples on proportionality analysis if it can be fundamentally affected by the State's change of intention from one theory in one crime, or one set of penalties, to another theory in another set of penalties.

I don't see what we can compare.

We no longer have comparables.

Mr. De Nicola: Well, but I think the Court can still look at whether the phenomenon of... as in this case, of heightened recidivism based on prior violence, or serious offenses threatening violence and triggered by a new crime that, say... that's classified as a felony by the legislature and that offers a sentence of... a lengthy sentence, but that still offers a possibility of parole...

Justice Scalia: I guess the conclusion that Justice Souter's questions would lead to is that a State cannot use any factor except retribution.

Or if it uses any other factor, it does so at the risk of our simply holding it to be disproportionate.

Mr. De Nicola: Yes, Your Honor...

Justice Scalia: And I don't know that our... I'm sure that our cases don't support that.

Mr. De Nicola: It... and I acknowledge it... to Justice Souter, it makes it a very difficult situation.

But under Harmelin, those, I think, are penological objectives that the Judiciary ought to defer to the State.

Justice Souter: But maybe... maybe, and I... we've... we haven't said this... maybe our assumption is that the State, in establishing a penal system, is going to establish it on a set of consistent and neutral principles from beginning to end.

Would that be a legitimate basis for us to ground our constitutional analysis?

Mr. De Nicola: No, Your Honor.

It disables the states from changing... from dealing with changing conditions.

Argument of Michael Chertoff

Chief Justice Rehnquist: Thank you, Mr. De Nicola.

Mr. Chertoff, we'll hear from you.

Mr. Chertoff: Mr. Chief Justice, and may it please the Court: I think the last series of questions which Justice Souter posed to Mr. De Nicola really framed the issue in light of this case's most recent pronouncement in Harmelin... this Court's most recent pronouncement in Harmelin

I would have read Harmelin as establishing two principles, at a minimum.

One is, the analysis is not proportionality; it's gross disproportionality, an extremely rare basis to invalidate a statute.

Second, we recognize that the states are entitled to adopt different penological theories, or a mix of theories.

In fact, I would have thought that a state's entitled to say, for example, that certain types of crimes ought to be addressed in terms of retribution; other types of crimes posing other kinds of issues can be dealt with in terms of deterrence and incapacitation.

And if the consequence of that principle is that this Court has very limited review on comparability of sentences, at least where we are dealing with sentences that allow for the possibility of parole, then I think the conclusion is that it is the extremely rare case in which a sentence gets...

Justice Breyer: Well, why isn't that this case?

I mean, I don't know how to approach proportionality other than to say, What sentences are given for the same crime, or what crimes are treated with the same sentence?

Now, suppose, looking at that, I find this is the rare case.

If it isn't, why isn't it?

I mean, all the information we have, as I've said before, seems to suggest that this is higher by a factor of two or three times anything else you can find.

Mr. Chertoff: Well...

Justice Breyer: Now, if that isn't grossly disproportionate, why isn't it?

Mr. Chertoff: It's not for several reasons, Your Honor.

First of all, although there's nothing in the record to speak to what the pre-1977 proportions were in terms of sentencing, we do know, for example, that elsewhere in the country there have been comparable sentences.

We've cited in the United States...

Justice Breyer: Cited a lot of instances in which the law permits such a sentence, but that's quite different from saying there was such a sentence.

Mr. Chertoff: Actually, I think in footnote 13, we've cited several cases in other states where you have very comparable punishments, where you have larcenies between 4 and $700 as the third strike...

Justice Breyer: And do you have instances where people were sentenced to 25 real years in prison for having committed such an offense?

Or were you citing that the law would permit such a sentence?

Mr. Chertoff: We cited review and rejection of disproportionality challenges in one case in Nevada to a life sentence without parole for a grand larceny of...

Justice Breyer: Good, okay, thank you.

Mr. Chertoff: $476, and a similar one, I think, in South Dakota.

Also, of course, as we look at the current sentencing regime, this is not, as in Solem versus Helm, where you have single judge who is apparently an outlier under the state sentencing scheme.

In this case, if one takes, in fact, a petitioner's own figures, you have at least 2 to 300 individuals whose third strike, under the California scheme as it now exists, has, in fact, been a property-based crime.

And I think the most compelling reason why this is not that very, very rare case where we strike down a sentence is precisely what Justice Ginsburg has been repeatedly asking about, the discretion that the courts have to tailor the particular sentence in this case to the facts of the case.

If we look at the record in this case, in the joint appendix, the sentencing judge carefully considered the entirety of the file with respect to the trigger... or the predicate offenses, which involved, actually, three burglaries in the course of a single month, one of which involved pulling a knife and threatening somebody, as well as at least nine prior offenses.

And interestingly, in no case since 1988 had the petitioner ever successfully completed probation or parole.

He was always violating probation or parole by committing his next offense.

And that's precisely what the sentencing judge looked at and explicitly referred to in rejecting the request on the part of the petitioner either to downgrade the triggering offense to a misdemeanor, or to eliminate some of the strikes.

And I would have thought that is precisely what we expect and want judges to do in a rational sentencing system.

Justice Souter: In effect, you're... going back to the beginning of your argument, I think you're... I think you're saying that what the judge here did in rejecting the request to downgrade or to disregard, in effect, was saying,

"Yes, I am finding that this is a case in which it is appropriate to sentence on an entirely different theory, a theory of putting them away, as opposed to a theory of deterrence. "

and I... that seems to be the logic of what's going on.

Mr. Chertoff: That's correct; an entirely different theory, though, that is embraced by the State in passing this law.

Justice Souter: And may I ask you one more question on that?

Because again, you started toward it in responding to me at the beginning.

Like you, I came in here assuming that the State could change its theories.

If that is so, then I guess what that means for proportionate or gross disproportionality analysis is this: A State can do it and can pass our Eight Amendment test if it has a reasonable basis for saying,

"We are going, under certain circumstances, to say there is a change to theory of sentencing. "

"The theory changes from deterrence or mere retribution to a theory or public protection, putting away the person who simply will repeat and repeat and repeat. "

So, for purposes of our proportionality analysis, the question would come down, Do they have a reasonable basis for doing that under their statute, in general?

And in particular, is there a reasonable basis for saying that this is a case for that?

And if the answers to those two questions are yes, then it passes the test.

Is that... would you adopt that analysis?

Mr. Chertoff: I would absolutely agree that if it satisfies those two, it passes the test.

That's not to say that if it flunks those, it automatically fails the test.

But certainly if you meet those conditions, I think you pass the test.

And I think there's a common sense to that.

One could look, for example, at certain types of violent crimes, like murders and rapes and say, irrespective of whether it was a crime of passion or something that will never happen again,

"It is so heinous, our philosophy is we have to punish it. "

But one can also look at comparatively small crimes, at least if they're felonies, and say,

"If someone is repetitiously unable to conform their conduct to the requirements of the law, we don't have to wait until he commits the next felony or the next two felonies before we put an end to it. "

And interestingly, if one goes back Blackstone, who talks a little bit about the issue of proportionality as it related back in his day, he discusses the fact that when you deal with habitual offenders, it would be cruel to the public to simply allow that person to get out again and commit their next crime.

So, I don't know that it's so much that the State changes its theory, as that the State adapts its theory to the particular type of crime and particular type of offender.

And that's, of course, what we want to have in sentencing.

And, finally, I would say this.

In a scheme like California, where the state judge has the power to tailor to the particular offender and the particular offense what the right answer is, for the federal courts to come in under gross disproportionality analysis and recalibrate that... even if, sitting as state trial judges, the justices might feel we would do it differently... would be essentially converting the courts into a constitutional sentencing commission.

And if one looks at the companion case...

Justice Kennedy: Excuse me, would be essentially to...

Mr. Chertoff: Convert the court into a constitutional sentencing commission.

Doing the kind of analysis that we now have, a sentencing commission...

Justice Breyer: And that would be a very bad thing.

I agree.

Mr. Chertoff: [Laughter]

Mr. Chertoff: It would be a... certainly very complicated thing, Justice Breyer.

So... and if one looks at the companion case, Andrade, and the subsequent cases in the Ninth Circuit that have flowed from that case, one sees this phenomenon beginning to emerge, where every fact pattern is evaluated slightly differently.

One court views burglary as being a violent offense; one court says it's not a violent offense.

Justice Kennedy: Could you argue that, because discretion is consistent with the goals of the statute before the sentencing, that some discretion is also permitted to a reviewing court after the sentencing, and they can still maintain the symmetry and the purpose of the statute?

Mr. Chertoff: The state law could certainly provide for some kind of review as a matter of state sentencing law in terms of abuse of discretion by the sentencing judge.

Justice Stevens: But in this... in California, does the appellate court ever set aside sentences on the ground there was an abuse of discretion to invoke the three strikes law?

Mr. Chertoff: I know of cases where they have affirmed trial judges that have set aside strikes.

I don't know of a case...

Justice Stevens: No, I... has... has a trial judge ever been set aside for imposing the third strike?

Mr. Chertoff: I'm not aware of it.

Justice O'Connor: I don't think...

Mr. Chertoff: I'm not aware...

Justice Kennedy: there are any...

Mr. Chertoff: of such a case.

Certainly the state law could allow that to happen.

If there are no further questions, I will return the rest of my time to the Court.

Rebuttal of Quin Denvir

Chief Justice Rehnquist: Thank you, Mr. Chertoff.

Mr. Denvir, you have one minute remaining.

Mr. Denvir: Your Honor, the point I... I'd like to make two points.

One is, if the discretion in... under the California law is very limited.

One thing would be to treat a wobbler, if it is a wobbler, and reduce it to a misdemeanor; so you would go from 25 to life, or life, to one-year maximum penalty.

That's not used very often.

The other one is to strike a prior conviction.

But that's a... the California Supreme Court in Romero said that's a very limited discretion, that it is only when you can find that this offender is outside the,whatever that is.

And there's an amicus brief filed by the Los Angeles public defender in Romero that shows that that discretion has been used very little in California.

So the... this limited discretion has no effect on it.

The only other point I'd make, as far as the repetition... as far as the labeling, if all the legislature has to do is say,

"What we're doing here is incapacitation, and, therefore, the Court can't look at that. "

then it really writes the Eighth Amendment protections against grossly disproportional sentences out totally.

If it's just a question of... they say,,and you can't even question that, because they can always claim they want to incapacitate any criminal for any amount of time.

Chief Justice Rehnquist: Thank you, Mr. Denvir.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Ring v. Arizona - Oral Argument

Fri, 09 Jan 2009 14:50:23 +0000

Case:

Ring v. Arizona

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Transcript:

ORAL ARGUMENT OF ANDREW D. HURWITZ ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in No. 01-488, Timothy Stuart Ring v. Arizona.

Mr. Hurwitz.

Mr. Hurwitz: Mr. Chief Justice, and may it please the Court:

In Apprendi v. New Jersey, this Court held that the Sixth Amendment guarantee of jury trial extends to the finding of any fact that exposes the defendant to a greater sentence than he could have received on the basis of the jury verdict alone.

We submit that that principle controls this case.

In Arizona, a defendant convicted of first degree murder may be sentenced on the basis of the jury verdict alone only to a sentence of life imprisonment.

The judge in Arizona has no power, no legal discretion under the law to sentence a convicted first degree murder defendant to death.

Ms Napolitano: Well, if you're correct, Mr. Hurwitz, I take it we would have to overrule not merely Walton, but Clemons against Mississippi, Cabana against Bullock, and Spaziano against Florida.

Mr. Hurwitz: Your Honor, let me take those cases separately because I do not think that at least two of them are implicated by the position that we urge today.

Certainly Walton would be have to be... would be overruled because it's directly on point.

And certainly, to the extent that Spaziano says that a judge may, in the first instance, make the finding of fact to... to... of... of an aggravating circumstance in order to allow a death sentence, it would be also... it would be also implicated and overruled by the position we urge today.

With respect to Clemons, Clemons was a case in which a jury made findings of fact on multiple counts that allowed a defendant to be sentenced to death, and the issue on appeal was rather whether, one of more of those factors having fallen out, the remaining factors could be weighed against mitigating factors for purposes of determining in the sentencing phase, the discretionary phase of the... of the capital punishment issue, whether or not there could be imposed a capital punishment at that point.

So, I do not believe that Clemons is implicated by our position today.

Rather, our point is very--

Ms Napolitano: How about Cabana?

Mr. Hurwitz: --Cabana, Your Honor, I suggest is a more difficult question.

Its reasoning would be implicated by our position today, but I... as we suggested in our brief, I think there is a distinction.

In Cabana... or Cabana... the issue was whether or not a particular sentence, where all the facts necessary under State law had been found by the jury, was unconstitutional as applied to a particular defendant.

That sort of as-applied analysis is the kind of thing that judges typically do.

They look at the law and lay it next to the facts of the case and determine whether or not that law, as applied, is unconstitutional with respect to a particular defendant or a particular sentence.

The issue posed by... by this case and by Apprendi is, I think, a quite different one.

It is when State law expressly requires a number of factors as a prerequisite to the imposition of a particular penalty, the maximum penalty allowed by law, whether or not the State can systematically deny to defendants in those cases the right to a jury trial.

Ms Napolitano: What other States have schemes that under your position would also fail the Apprendi test?

Mr. Hurwitz: Your Honor, we... I think we attempted to summarize the... the status on page 38 of our brief.

We think there are eight or nine States whose systems would be implicated by this.

But what is not clear in all of those States... and to take Florida as an example, Your Honor... is whether or not in a system which, as this Court suggested in Jones, where the jury makes, by implication or by necessity, a finding of a particular aggravating factor in order to recommend a death sentence, whether or not that system would... would be affected by the principle that we urge.

Certainly those States where there is no jury involved in finding the necessary aggravating circumstance would be the ones that would be implicated, and I would suggest that that category is probably somewhat less than the category in footnote 35 of our brief.

It is clear, however, that whatever the effect on other States, Arizona's system precisely complies and precisely matches up to the rule that this Court announced in Apprendi.

It is simply not possible in Arizona for a judge to impose this sentence of death without first finding a fact that Arizona's State law specifies is necessary for the imposition of that maximum punishment.

And under that circumstance, we suggest there is no basis for distinction of Apprendi.

Now, the State has suggested in this case that one basis for a distinction is that the Arizona statute says, within one single statute, the range of punishment, the possible punishment for first degree murder is either life... life without possibility of parole, or death.

But I would suggest that distinction makes no difference.

Certainly in the Jones case, the precursor to Apprendi, a case that this Court considered a year before Apprendi, a single statute set forth the range of punishment.

In the Harris case, the case this Court considered only several weeks ago, where the government conceded that section 841, the drug statute, was covered by Apprendi, several different punishments are set forth in a single statute.

It is difficult to believe that Apprendi would have been... come out differently, that there would have been a different result in that case, if the statute instead read there's a possible punishment of 20 years for discharging a firearm with racial motivation, but the last 5 years may not be imposed.

You may not exceed 15 years in the absence of racial motivation.

Ms Napolitano: If we were to accept your position, Mr. Hurwitz, what would it do to the Federal Sentencing Guidelines?

Mr. Hurwitz: Mr. Chief Justice, let me focus on only one aspect of the sentencing guidelines because it seems to me that there's no implication whatsoever for downward departures and that the... this Court has already made clear, as the guidelines themselves say, that you can't exceed the maximum sentence provided by the underlying substantive statute.

So, if I can focus on the question of what would happen--

Ms Napolitano: Upward... upward adjustments within the maximum.

Mr. Hurwitz: --Yes, Mr. Chief Justice.

With respect to those, I think there is a distinction, and let me suggest it to the Court.

In Arizona, the... the judge simply has no legal power, no discretion, no ability whatsoever to impose a sentence greater than life in the absence of finding a particular aggravating circumstance specified by the State in its statutes.

With respect to the sentencing guidelines, a judge has discretion, and we know that because you review sentencing decisions for abuse of discretion.

So, the judge has the legal discretion to impose a sentence in excess of the so-called presumptive range upon the finding or upon noting in the record any number of particular facts, not specified by statute.

Ms Napolitano: Yes, but he didn't... it's a strange kind of discretion that can be reversed on appeal.

He doesn't have discretion.

The whole purpose of the guidelines is to eliminate the discretion, to say you must give this sentence if these factors exist.

Mr. Hurwitz: Justice Scalia, my point is, I think, that in our case the judge has no power at all.

He can never find... he can never exceed that particular limit, the limit being life, in the absence of... in the absence of finding a fact specified by the State, a fact chosen by the State as necessary to impose the sentence.

The sentencing guidelines strike me as somewhat distinguishable because the range of factors that a judge may choose to depart upwards is... is by the guidelines relatively unlimited.

Ms Napolitano: Well, in... in this case, the aggravating fact was killing for pecuniary gain.

Mr. Hurwitz: Correct, Justice--

Ms Napolitano: And that was clearly implicit, if not explicit, in the jury's finding.

Mr. Hurwitz: --I... I would suggest neither in this case, Your Honor.

Ms Napolitano: They didn't find a robbery?

Mr. Hurwitz: The jury found a robbery, but under Arizona law, as the cases make quite clear, in order in a felony murder case for there to be a finding of pecuniary gain, or in any murder case to be a finding of pecuniary gain, there must be a showing that the murder itself was motivated by a desire for pecuniary gain.

And the Arizona Supreme Court has said on three or four occasions it is not enough that a murder was committed in connection with a robbery or, indeed, even in connection with a felony murder.

The issue is motivation for the particular homicide.

In this case, the Arizona Supreme Court said expressly we can't tell from the trial record why the driver was killed.

There is virtually no evidence in this trial record as to why the driver was killed.

It was on the record made in the post-trial proceedings, the record made on the basis of the accomplice testimony, that the Arizona Supreme Court concluded that.

So, in this case when the Arizona Supreme Court says two things... one is the issue for pecuniary gain is whether or not there has been proof of the motivation for the murder, and second, in this case we can't tell why the person was murdered... I would suggest there is neither a necessary, implicit, or even logical finding by the jury in this case of... of pecuniary gain.

The Arizona Supreme Court I think addressed that issue quite straightforwardly and directly.

Now, the State suggests that one distinction between this case and Apprendi is the idea that these aggravating circumstances are so-called sentencing factors, not elements of the crime.

But I think that... that argument was answered in Apprendi.

What this Court said in Apprendi was that the real test is not one of labels.

The real test is one of function.

Is this a fact that is necessary under the State law to allow the judge to sentence somebody to the maximum sentence provided by law?

And plainly it is, and whether you call these aggravating circumstances sentencing enhancements or whether you call them elements, you arrive, I would suggest, at the same result.

This case on its face is covered by Apprendi.

One way to... one way to... to get into that issue is to... is to imagine the following circumstance.

Let's assume that Arizona law, instead of providing precisely what it does now, said instead that the penalty for first degree murder is life without... is life with possibility of parole.

But that penalty may be increased to life without possibility of parole upon finding of one of 10 specific aggravating circumstances, so that we had exactly the same statute that we have now, but at the first level you get life with possibility of parole after 25 years, and at this next level, you got life without possibility of parole.

I don't think there could be any doubt, under those circumstances that on its face the rule this Court set forth in Apprendi would apply.

Ms Napolitano: I think that's true, and I think that in the... in the normal circumstance when a State does something like that, even if it is not calling it an element of the crime, it is an element of the crime.

What we have here, however, this... this statute was enacted in... in what?

'73?

Mr. Hurwitz: Initially in '73, Justice Scalia.

Ms Napolitano: Which was the year after Furman.

And what Arizona was saying was, you know, we... we never thought we had to have any finding of aggravated... aggravating factors in order to impose the death penalty, but the Supreme Court, in a decision that... that had no... no rooting in the common law, said that we cannot impose capital punishment without aggravating circumstances.

Okay.

We'll make a finding of aggravating circumstances necessary and we'll have that finding made by a judge.

Now, I... I don't regard that as Arizona adopting the aggravating circumstance as an element of the crime, nor does the statute read that way.

So, you're... you're talking about something that is unprecedented in... in the common law.

You're talking about a finding that has been mandated by the Supreme Court and the issue is whether the finding mandated by the Supreme Court has to be made by the jury or... or the judge.

And we've said in several cases that it's enough if it's made by the judge.

Now, why isn't--

Mr. Hurwitz: Justice--

Ms Napolitano: --why isn't that enough to resolve the case?

Mr. Hurwitz: --Justice Scalia, if the... if the point here is that the State was forced to do this and, therefore, this cannot be an element under the Apprendi test, I would suggest that presents several analytical problems.

The first is that this Court has said on any number of occasions to the States, here is something that must be in your law.

The very same term that this Court decided Furman or the year before, it decided Miller, and in Miller it said if you want to have a constitutional obscenity law, State, you must have a specific definition in that State... in the law of the kind of conduct that you wish to... to punish, the kind of... the depiction of the kind of conduct that you wish to punish.

We're not telling you, States, by the way, what specific factor you have to have.

You decide.

Here are some suggestions.

Arizona, the year after Miller was decided, amended its statutes to add to its obscenity laws a specific requirement with respect to proof of specific types of sexual conduct.

This Court made them do that.

The Constitution made them do that.

But I do not believe it would be suggested that those specific elements of the crime, those specific factors that are necessary to impose the maximum punishment allowed by law, are somehow exempted from the Sixth Amendment for that reason.

Ms Napolitano: No, but in... in the... in the obscenity field, we didn't invite the kind of procedure that... that was adopted here by... by establishing a separate... a separate category, the... you know, the... the guilt phase and the penalty phase.

We... we invited the... the severing of the trial into those... into those two portions.

And it seems to me it's up to us whether the constitutional requirement that we've imposed upon the States requires a finding by the judge or a finding by the jury.

It's... it's simply not was simple as to say, well, it's an element of the crime and therefore has to be found by the jury.

It's... it's rather what does the... what does the Constitution, as interpreted by this Court, demand.

Mr. Hurwitz: Justice Scalia, let me... let me come at that at... at two levels.

The first one is I think the basic constitutional principle that underlies the Sixth Amendment.

And that principle, as this Court articulated in both Jones and Apprendi, is the notion that before you're handed over to the State and before the State is allowed to exact the maximum punishment permitted by law, a jury of your peers is allowed to you to find those facts to put the State in that position.

Certainly that principle is directly implicated by the death penalty situation on its face.

So, this underlying Sixth Amendment principle strikes me as no different.

With respect to bifurcation, there is, of course, no constitutional requirement that the aggravating circumstances be found in a penalty phase of the trial.

This Court has made clear on any number of occasions that the aggravating circumstances, these so-called narrowing circumstances, the facts necessary under State law to allow the imposition of a death penalty can be found in the so-called guilt phase of the trial.

Ms Napolitano: But if... if Apprendi was based on a long common law history, as... as it certainly seems to have been, wouldn't that distinguish it from the aggravating/mitigating, which certainly is not based on common law history at all?

Mr. Hurwitz: Mr. Chief Justice, it strikes me that the common law history here makes the central principle.

The central principle in the common law history is, after all, the one that Apprendi and Jones articulate about the protection of the Sixth Amendment.

The procedure faced in Apprendi was not known at the common law.

The procedure of having a specific aggravating factor that might enhance a sentence was unknown to the common law.

Yet, this Court in Apprendi said the basic Sixth Amendment principle that underlies... underlied the adoption of the Sixth Amendment in 1791 should apply to this circumstance.

I think that's--

Ms Napolitano: Mr. Hurwitz, may I ask why you have... you have certainly made a case about the aggravating circumstances, but you haven't put, as part of that case, the so-called Enmund/Tison findings.

And it seems to me that if in Arizona someone can be put to death only if he was the triggerman, or was a... what is the other phrase, a major participant, you haven't made anything of those factors, and I think if... if the aggravating factor has to be found by the jury, then surely those would have to be as well.

Mr. Hurwitz: --Justice Ginsburg, that may well be the case.

As I think I suggested in response to the Chief Justice's initial question, it... it has struck us that there is a difference between the sort of as-applied analysis that an Enmund/Tison finding requires, a proportionality analysis, and the issue of whether the State systematically denies with respect to a particular factor that it's picked out, and nothing in this Court's jurisprudence required the State to adopt any particular aggravating circumstance.

With respect to those particular factors, it strikes us that's at the core of Apprendi.

I don't resist the suggestion that perhaps the principle in Apprendi extends farther, and it extends to... to the Enmund/Tison findings.

What I do suggest is that... is that the core of Apprendi, the very central holding of the case necessarily extends to facts which the State itself has said in its statutes are necessary in order to find... in order to allow the maximum punishment to be imposed by law.

Ms Napolitano: But... but the other factor you haven't discussed is the mitigating circumstances.

Mr. Hurwitz: Correct, Justice Kennedy.

Ms Napolitano: The common law, in defining elements, doesn't usually have some factors on the other side that... that are mitigating.

Perhaps... perhaps you can suggest some examples where they do.

But again, this goes very much, it seems to me, to show that this is part of our Eighth Amendment protections that have been mandated.

In Apprendi, the judge could always, once he or she found the racial animus, enhance the sentence; in fact, had to.

Here there's still a balancing that has to take place and... and that... that certainly is... is not something classically reserved for the function and province of the jury.

Mr. Hurwitz: And that's... that's correct, Justice Kennedy, and we don't suggest that mitigating circumstances or circumstances that suggest leniency must be found by the jury.

It has always been the case that once the judge was empowered to enter the maximum sentence allowed by law, that judge could consider whatever factors or the State could consider, in... in whatever form it did so, those factors that might provide for a sentence of less than the maximum sentence allowed by law.

Ms Napolitano: What about that kind of argument that initially Justices Stewart and Powell and Stevens have made, that there's a necessary connection between the determination that death in a case is not cruel and unusual and the jury is doing the weighing in order to show that it reflects a community sentiment in that community that the death penalty is not cruel and unusual?

Mr. Hurwitz: And, Justice Breyer, had this Court accepted that as... as a correct statement of the Eighth Amendment, we obviously wouldn't be here today.

We're operating... we're operating with the constraints of this Court's decisions which have said that kind of jury weighing, that kind of jury sentencing is not required by--

Ms Napolitano: Were it up to you, you would make that argument if you felt it was open.

Mr. Hurwitz: --If it were open, it's an argument we might make, but it is--

Ms Napolitano: Well, presumably you would make any argument that's open to you.

Mr. Hurwitz: --We're open.

[Laughter]

To be sure, Mr. Chief Justice.

But... but my point is it's not an argument we need make in this case.

We are not suggesting that jury sentencing is required.

We are suggesting that jury fact finding is required.

And if I might, let me suggest the difficulties of adopting a rule that somehow has one... one approach if something was done pre 1972 and another one after.

If Arizona had adopted this very same statute identically worded in 1965, when the ALI first suggested it as a possibility to the States, it seems to me clear, on the basis of Apprendi, that the aggravating circumstances would be elements, or at least sentencing enhancements, as the Court said, and required to be found by the jury.

Ms Napolitano: But if it adopted the statute in 1965, it could have simply had the exact language that it had and said the decision as to whether death or life is simply up to the discretion of the judge, and it would have been perfectly okay.

Mr. Hurwitz: Because Apprendi and Jones had not been decided at that time, Mr. Chief Justice.

Ms Napolitano: And because Furman had not been decided.

Mr. Hurwitz: To be sure.

But my point is that if this Court... this Court will enact an unworkable system if what it does is start looking at State statutes and trying to determine whether or not particular factors in those statutes arose in response to Furman, before Furman, after Furman.

One example is suggested in our brief.

The State of New York in the mid-1960s determined to narrow its capital punishment laws and apply them only when the victim was a peace officer.

Arizona made that decision in 1988.

Was Arizona's decision in response to a mandate from this Court, or was Arizona's decision because, as New York, it made a policy decision?

Ms Napolitano: Arizona has decided to apply its capital punishment only to when the victim was a peace officer?

Mr. Hurwitz: No.

That's one of the... one of the narrowing circumstances in Arizona law.

And my... my point, Mr. Chief Justice, is let's assume two States, one of which made that decision in 1965, and another one made that decision in 1988, and it was the only aggravating circumstance that that State had adopted.

Would this Court then say, with respect to State number one, the aggravating--

Ms Napolitano: But here it's a whole procedure designed to have express mitigation and... and aggravation to be considered by the same trier of fact and balanced.

And you... you seem to give again very... very little force to the mitigation aspect.

Mr. Hurwitz: --Justice Kennedy, I don't mean to.

I think it is entirely appropriate and entirely possible for a State to design that weighing and that mitigation issue to a... to a jury.

But this Court has made clear, not only in this context, but in other contexts, that... that a defendant is not entitled to a jury trial to establish mitigation from the maximum sentence that the law might allow.

Once again, I would return, I think, to the underlying Sixth Amendment principle, as this Court stated it in Jones and Apprendi.

The notion was in 1791 that before a defendant was put, in effect, into the tender mercies of the State to be... to be subjected to whatever sentence the law might allow, first that defendant got the right to have a jury of his peers find the facts that were necessary to do so.

He did not have the right at that time to have a jury of his peers find whatever facts might persuade the sentencer to give him less than the maximum allowed by law.

So, I would suggest that when you return to the underlying Sixth Amendment principle here, it does provide a distinction between facts that would call for leniency and facts that... that are necessary under the State's law to impose a particular sentence.

Ms Napolitano: Except that Arizona has designed its system, and you could design other systems, but it's designed its system in order to sort out the most culpable offenders and it uses this balancing mechanism.

Mr. Hurwitz: Well, I would separate, Justice Kennedy, the two parts of the death penalty process.

There is a sorting at the front end.

There is a narrowing that is required in order to determine which defendants among all those convicted of homicide are, in effect, the most culpable and can be sentenced to death.

There is a second proceeding.

The second proceeding is the sentencing proceeding.

And what this Court has made clear is that with respect to that first proceeding, there must be specified facts.

That's the Furman analysis.

And that's the aggravating circumstance that we contend is required under the Constitution to be found by the jury.

With respect to the second decision, this Court has made plain on any number of occasions that that can be made a discretionary decision for the judge.

Proportionality measurements are no longer required at that level.

What this Court has said, however, is you just have to let the defendant have the opportunity at that circumstance to argue for individualized treatment or to argue about leniency, to bring the facts pertinent to his case to the attention of the court.

So, I would suggest it is at this first stage, this narrowing stage, that the Apprendi principle applies.

Ms Napolitano: What you're saying is you're not entitled to a finding of... of mitigation.

You are entitled to a finding of... of aggravation.

Mr. Hurwitz: Precisely so, Justice Scalia.

And I... and I think not only are you not entitled to it, but... but there is nothing in this Court's jurisprudence that requires that the State specify a particular fact in mitigation.

Here we have facts chosen perhaps under the compulsion of the Constitution, but nonetheless chosen by the State as necessary prerequisites to the punishment.

Unless the Court has other questions, I will reserve the balance of my time.

Ms Napolitano: Very well, Mr. Hurwitz.

General Napolitano, we'll hear from you.

ORAL ARGUMENT OF JANET NAPOLITANO ON BEHALF OF THE RESPONDENT

Mr. Napolitano: Mr. Chief Justice, and may it please the Court:

Opposing counsel began with Apprendi, but let me take up on the suggestion by Justice Scalia that this case really begins with Furman because after Furman, the States were left with the mandate that death penalty decisions could not be left unguided under the Eighth Amendment, but requires a standard of judgment.

Some States imposed mandatory death sentences, a practice this Court later found unconstitutional.

In contrast, Arizona amended its death penalty statute to comply with Furman by adding a series of factors which the judge would take into account in choosing between the alternative punishments of life or death.

In Walton, this Court fully considered and upheld the constitutionality of Arizona's law.

The question now is whether at this late date Apprendi requires you to overrule Walton.

And the answer is no.

Apprendi is a Sixth Amendment issue.

Furman, Walton, and this case Ring concern the Eighth Amendment.

In addition, principles of stare decisis are heavily implicated here because, as Chief Justice Rehnquist mentioned, there have been any number of precedents in this Court that would be implicitly, if not explicitly, overruled should this Court overrule Walton.

Let me, if I might, turn to two important distinctions between Ring and... and Apprendi.

One is substantive and one I would call formal.

The substantive distinction is this.

The sentencing statute in Arizona derived from Furman.

It was passed in 1973.

The pecuniary gain aggravating factor was one of the original aggravating factors in that statute.

There was never a... a suggestion that Arizona was playing a game, moving something that previously had been an element into the sentencing factor side of the statute.

There's never been any suggestion that this was anything other than a way to decide which of all first degree murders deserve the death penalty.

Ms Napolitano: Are we going to have to try to figure that out case by case with... with respect to every State's statute, as Mr. Hurwitz suggested we... we would have to do?

Mr. Napolitano: Your Honor, I think--

Ms Napolitano: I mean, what about the New York statute that... you know, that makes an aggravating circumstance the death of a... of a peace officer?

Mr. Napolitano: --Your Honor, I think what you have to do is just look at what was the underlying first degree murder statute, what is the underlying statute which gives rise to the possibility of a death penalty.

In Arizona, the underlying first degree murder statute has been the same since 1901, and in fact, around the country, most first degree murder statutes can trace their routes to England in terms of how they are defined, the mens rea, the actus reus, and the causation requirements.

Ms Napolitano: But you're--

Mr. Napolitano: It's not a difficult process to go through.

Ms Napolitano: --But you're saying... the implication of what you're saying is that any, in effect, departure or innovation in the modern law which doesn't have a clear antecedent, at least as of the time of the... of the framing, is exempt... is a fact exempt from the jury trial requirement.

I mean, that's... that... we'd have to adopt that rule in order to see it your way.

Mr. Napolitano: No.

No, Your Honor, you would not have to adopt such a blanket rule.

What I am suggesting is this.

In a situation where you have a statutory scheme that quite clearly, plainly, and unequivocally derives from this Court's Eighth Amendment jurisprudence, some of the Sixth Amendment questions that were raised in Apprendi are not implicated.

And you can make--

Ms Napolitano: So, if the State comes up with a new condition, the jury trial guarantee applies.

If this Court comes up with it, for whatever reason, it does not apply.

Mr. Napolitano: --Not necessarily, Your Honor.

And it gets you into the discussion of what is the intent of the legislature, what does it mean to be an element of the crime in the first place.

But under--

Ms Napolitano: Why... why does it matter whether it's an element or not?

I mean, doesn't Apprendi say call it an element, call it a factor, we don't care what you call it?

If it's a fact necessary, et cetera, it's got to be found by the jury.

Mr. Napolitano: --Well, I think in... in looking at McMillan and Jones and Apprendi and that whole line, there has been a question created by this Court as what is an element because if it's an element, what this Court has said is it has to be charged, it has to be proved beyond a reasonable doubt, and it has to go to the jury.

If it's a sentencing factor, if it's... if that's what's going on, those requirements do not apply.

Ms Napolitano: Well, let me... let me go back.

I... in effect, I sort of put you off track here.

You... you were saying that there isn't a simple distinction on your theory between facts added by a legislature and facts required by this Court.

So, tell me... tell me why there isn't such a distinction as... as you're arguing it now.

Mr. Napolitano: What we're arguing, Your Honor, is that when a fact is found purely for the purpose of sentencing... and... and recognize the fact here murder for pecuniary gain was never a part of the definition of first degree murder.

First degree murder is the intentional killing of another or a felony murder with certain underlying felony predicates.

The jury found that here.

It was charged here.

There was a death notice in the actual indictment.

Ms Napolitano: Right.

Mr. Napolitano: The jury was death qualified.

So, there's no question of surprise here.

Ms Napolitano: Well, are you... are you saying then that if a legislature adds a fact... call it an element if you want... purely for purposes of determining the sentence, that that too would be exempt from the... the guarantee of the jury trial?

Mr. Napolitano: I think it could be exempt depending on the circumstances, yes, Your Honor.

Ms Napolitano: But would it be... I mean, is that the theory that you're arguing?

Mr. Napolitano: Yes that there are--

Ms Napolitano: I just want to know what you're... you're arguing.

Mr. Napolitano: --Yes, Your Honor.

I'm sorry.

That there are some facts that the legislature is entitled to find which don't go to the definition of the crime but go to the punishment.

And this Court has never held that there's a Sixth Amendment right to jury sentencing.

Ms Napolitano: What... what do you do with the broader principle which we express from time to time that the... the ultimate point of the jury right in... in a criminal case is to... is to place the jury between the defendant and the State?

If... if that's a fair statement, then you're saying, well, only part way between the defendant and the State.

Mr. Napolitano: In the death penalty context, Your Honor, this Court has already limited the kind of offenses for which the death penalty can even be a possibility.

So, you don't have the kind of broad ranging legislative discretion that you would in another circumstance.

That's why I say you... you... in those kinds of non-death cases, you may have to do a different kind of analysis.

But in the unique context of the death penalty world where you have to have either a first degree murder or a felony murder... and if it's a felony murder and you have a non-shooter, you have to make the Enmund/Tison finding, and that has to be made and can be made by the judge... there... the legislature is not... they're not charging the death penalty for jaywalking.

And then the question is, all right, is the legislature entitled under the Eighth Amendment or does the legislature under the Eighth Amendment have to channel discretion?

And they do.

And then the question is, does Apprendi somehow require that that Eighth Amendment jurisprudence be converted into a jury right on this... on the aggravating factors?

And as this Court has said time and time again, no, starting with Proffitt v. Florida all the way through Walton.

Poland v. Arizona is a great example where--

Ms Napolitano: But... but your... your principle, in fact, is broader than that because, as I understand it, your principle is that what we have traditionally referred to as sentencing factors... maybe change that to a neutral term, facts that bear solely on sentencing... they can be excluded from the... the jury finding guarantee.

Mr. Napolitano: --Yes.

In the unique context of the death penalty and then it remains for this Court to decide whether you want to broaden it.

But the rule proposed by the petitioner here would be equally broad taken out of the death penalty context because you could have no fact that enhanced a sentence that didn't first have to be found by a jury.

And in response to a question that was posed earlier, that would throw into question the Federal Sentencing Guidelines and their structure and... any many State sentencing structures where, once you are convicted of a particular offense, the State law requires the judge to give you a presumptive sentence unless he finds additional facts, in which case he can depart upwards.

It's not just the Federal Sentencing Guidelines that use that structure.

Many States use that structure.

So, if you are to hold that an aggravating factor even in a death penalty case has to go to the jury, it is hard to imagine why that wouldn't extend throughout the sentencing systems of the States.

Ms Napolitano: General Napolitano, how many death sentence case are there presently in Arizona that would be affected by a reversal here?

Mr. Napolitano: We've had 89 death sentences imposed since Walton, and approximately 30 are in some type of direct review.

So, it's a substantial number, and that's just in... in Arizona.

Ms Napolitano: Maybe Apprendi throws into play some of those earlier cases, even if you don't agree with Apprendi or feel it's quite limited.

What about the other cases I mentioned where Powell and... and Stewart... Stevens all thought that a jury should make this determination as part of the Eighth Amendment jurisprudence because it's very important that the death penalty be applied only where opinion in that community believes that it is consistent with the cruel and unusual punishment prohibition?

Mr. Napolitano: Two responses to that, Your Honor.

One is this Court itself in a later case mentioned that they thought judicial sentencing may, in fact, be a better way to guarantee against the arbitrary imposition of the death penalty.

Ms Napolitano: The statistics seem to suggest that it is absolutely no reason to think that.

Mr. Napolitano: The statistics seem to suggest that there is absolutely no reason to think that jury sentencing is any different, that they're a wash.

But there hasn't been a lot of literature on this subject.

And--

Ms Napolitano: Well, yes, but there has... there was a long... you know, Potter Stewart went into all of this.

Mr. Napolitano: --Yes.

Ms Napolitano: Go ahead.

I don't want to interrupt you.

I'm sorry.

Mr. Napolitano: But--

Ms Napolitano: I want to hear your answer.

Now, please go ahead.

Mr. Napolitano: --Well, the jury is involved in this case.

The jury is a protector in this case.

This was an indicted case, indicted for first degree murder.

That went to the grand jury.

It was then presented to the petit jury.

They made the determination about the felony murder.

They weighed the evidence.

They knew or were on notice that this was a death case.

The jury right was embraced here, just as it was pre Furman.

The only difference is the post-Furman addition of the sentencing factors.

Ms Napolitano: No.

The difference is that the individual juror does not have to take the individual responsibility of saying I as a human being have decided that this person should be sentenced to death.

Now, that's quite a difference.

Mr. Napolitano: Your Honor, even under petitioner's argument, an addition... and a... and a juror may not have to make that decision because even petitioner's argument says, we just want them to find a fact.

Ms Napolitano: That's true.

Mr. Napolitano: We still say it's okay for the judge--

Ms Napolitano: I... I grant you that.

That's why--

Mr. Napolitano: --So, go ahead and do the weighing and so forth.

Ms Napolitano: --I... I... you're quite right on that.

That's why I want to see what the answer to the full argument is on your part.

Mr. Napolitano: Well, the answer is that the jury here is embraced and is performing the function of juries that has come down from colonial times or pre-colonial times.

There's nothing different.

The jury has to find intent to kill.

The jury has to find a death.

The jury has to find causation.

The instructions are the same to the jury.

Ms Napolitano: But it could make all those findings and it would not authorize the death penalty.

Mr. Napolitano: Excuse me?

Ms Napolitano: It could make all those findings that you just recited, and yet the law of Arizona would not permit the imposition of the death penalty.

Mr. Napolitano: The jury verdict at that case, under that part of our statute, would say that the maximum death penalty is death.

But you're right, Justice.

It can't be enforced until the judge conducts the second sentencing hearing.

Ms Napolitano: Unless the judge makes an additional finding of fact.

Mr. Napolitano: He must find an aggravating fact and then he can find... weigh those against the mitigators and make the determination as to whether death is the appropriate punishment.

But again, this is part of the process this Court has dictated to the States to determine which of the worst murders deserve the worst penalty.

Ms Napolitano: General Napolitano, the... the expanded argument that Justice Breyer is... is suggesting, which... which isn't urged by Mr. Hurwitz, is really an Eighth Amendment argument rather than a Sixth Amendment argument, isn't it?

That is, the fact that the jury should also be required to do the weighing and to make the final determination that this person deserves the death penalty.

That's not a Sixth Amendment argument; it's an Eighth Amendment.

Mr. Napolitano: I think it could be construed as an Eighth Amendment argument, yes, Your Honor.

And... and as I said at the beginning of my argument, this whole situation, this whole statute derives from Furman and from the Eighth Amendment.

It does not implicate the Sixth Amendment or the concerns that were expressed in Apprendi.

And let me, if I might, go to the stare decisis part of my argument, because it's not just the cases you listed, Your Honor, that I think would be implicitly overruled, but let me give you a list: Proffitt v. Florida, Spaziano, Cabana v. Bullock, which does allow the--

Ms Napolitano: But do you think it's perfectly clear... you cite a couple of Florida cases... that if the Florida advisory jury made the findings of fact that would be... make them... the defendant eligible for the death penalty, that that case would be covered by the decision in this case?

Mr. Napolitano: --Yes, and I think it's important to understand how the Florida system works under Florida law.

What happens is after conviction, the jury hears a separate sentencing proceeding.

Ms Napolitano: Correct.

Mr. Napolitano: And it comes out with really a unitary form, and all that form says is life or death.

It does not specify which aggravating facts the jury may have found or which mitigating facts the jury may have found.

And then the trial judge takes that form--

Ms Napolitano: But supposing it did just to... just to go with me on the... on the hypo.

Mr. Napolitano: --Okay.

Ms Napolitano: Supposing, as a part of the procedure, the judge did require the jury to accompany its recommendation with a finding of fact as to the aggravating circumstance.

Would that then be covered by this case?

Mr. Napolitano: I think it would, Your Honor, because you're still allowing the judge to make the final determination.

And if the judge is able to disagree on the facts--

Ms Napolitano: But that's the Eighth Amendment issue.

The judge is making the final determination but not necessarily... but it would be supported by a jury finding that was sufficient to authorize the death penalty.

Mr. Napolitano: --In this case, the jury finding of first degree felony murder authorized the death penalty.

The question was, could it be imposed and what is the... what is the way to do--

Ms Napolitano: It doesn't authorize it without an additional finding by the judge.

Mr. Napolitano: --It authorizes the judge to go forward and conduct a separate sentencing hearing.

Ms Napolitano: In some... in some States, it's my understanding that the jury simply makes a finding that the aggravating circumstances outweigh the mitigating circumstances without specifying either.

Now, would that be affected, at least by Justice Breyer's argument?

Mr. Napolitano: I think it... it could conceivably.

I mean, I... you know, what we're dealing with here is a very difficult--

Ms Napolitano: But... but isn't it clear that the aggravating circumstances could not outweigh the mitigating circumstances unless there were a finding of at least one aggravating circumstance?

Mr. Napolitano: --Yes.

Ms Napolitano: Which in turn--

Mr. Napolitano: But you could have--

Ms Napolitano: --would make him eligible for the death penalty.

Mr. Napolitano: --I... yes, Your Honor, but you could have the situation such as a State like Florida where the judge doesn't know what aggravating circumstance was found, and you're still--

Ms Napolitano: Well, he doesn't know which is found, but he knows that one is found.

It seems to me if you say that's not enough, then you are making the Stewart Eighth Amendment argument, aren't you?

Mr. Napolitano: --Yes.

And... and the... the problem there is if the Eighth... if an aggravating circumstance is found by a jury and the judge doesn't know what it is, and the judge still has to go through all of the evidence and do the weighing as to what weight that aggravating circumstance should find versus the mitigating, the basic... one basic question is, well, what is the function of the jury there anyway?

What is the protection the Sixth Amendment is providing to a defendant there?

And I would suggest that a defendant such as Ring and such as a defendant in Florida has already received all the protections that the Sixth Amendment entitles him or her to.

And all that is going on here is a narrowing process where the judge's discretion is actually being narrowed in sentencing, not broadened.

In Apprendi, you could actually say the discretion was being broadened, the same as in Jones, but it is being narrowed.

Ms Napolitano: Yes, but it's narrowed to the extent that he now knows he must make an additional... one single additional finding of fact in order to put this man to death, which is... the jury has not made that finding of fact.

Mr. Napolitano: Well, yes, Your Honor, at a... at a statutory level in Arizona that is absolutely true.

Ms Napolitano: That's what your Supreme Court says is the case here.

Mr. Napolitano: Yes.

Now, in... in the Ring case, there... there is the issue of the fact that he was convicted of armed robbery and conspiracy to commit armed robbery.

Ms Napolitano: May I ask if you disagree with your opponent's analysis of the pecuniary circumstance issue?

He says that there's a difference between armed robbery on the one hand which is for a pecuniary purpose and the pecuniary motivation in a death case, and that has to be the motivation for the killing itself, is that the robbery... robbery alone would not satisfy that.

Do you disagree with that?

Mr. Napolitano: Yes, Your Honor.

And I would cite the... this Court to State v. Gretzler which is cited in our brief.

But on the record before this Court and on the--

Ms Napolitano: You'd cite State v. Gretzler to the Court.

Mr. Napolitano: --Yes.

It's in our brief, Your Honor.

It's an Arizona Supreme Court case.

But I would also add that in this case, based on the trial transcript and the sentencing hearing transcript, which are part of the joint appendix before the Court, it's very clear that the reason Mr. Magoch was killed was because he unfortunately was the driver of an armored car that Mr. Ring decided to rob.

Ms Napolitano: I... I agree when you say sentencing transcript, but what about just the guilt phase transcript?

Would you make the same... the same--

Mr. Napolitano: Yes, I would, Your Honor--

Ms Napolitano: --draw the same conclusion?

Mr. Napolitano: --Yes, Your Honor, and... and I think that's why the jury convicted him of armed robbery and conspiracy to commit armed robbery and rendered a unanimous verdict on the felony murder portion even though they didn't render a unanimous verdict on the premeditated--

Ms Napolitano: General Napolitano, will you correct me if I'm wrong about this, but I thought that the proof at the trial itself didn't even place the defendant at the scene of the crime.

Certainly he was involved in planning it.

They... but they didn't even place him at the scene of the crime at the trial.

That didn't come up until sentencing when the co-defendant testified.

So, how could the jury have made the finding that he killed for pecuniary gain when he wasn't even at the scene?

Mr. Napolitano: --Your Honor, it goes to the fact that he was at a minimum a major... major conspirator in a conspiracy that resulted in the death of an armored car driver.

The purpose of the conspiracy was to rob the armored car.

The jury, by finding the armored car robbery, the... the membership in the conspiracy, and then the sentencing court and then later the Arizona Supreme Court making the Enmund/Tison finding impliedly, if not explicitly, proved the pecuniary gain issue.

But if there's any question for this Court on that point, and should you be inclined to overrule Walton, which you should not, that's a matter that always could be remanded back to the State Supreme Court for further explanation.

Ms Napolitano: Would you tell me how one would explain to a citizen that you can't get 5 years added on to your sentence unless the jury makes the critical finding, but you can be put to death with the judge making the critical finding?

Mr. Napolitano: Because, Your Honor, the... the difference is what is the source of the punishment.

Where does it come from?

What is the source of the sentencing at issue?

And in the prior situation, in a... in a non-death penalty case, what the Court has been doing and what Apprendi does is expand the range of the jury trial.

But what the Court has not done is expand the Eighth Amendment protections that it... that it incorporated onto the original elements of first degree murder for death penalty cases and say not only are these Eighth Amendment issues, now we're going to even transfer it further and make them Sixth Amendment issues.

And... and the implications are large.

Ms Napolitano: It seems to me that you're making a novel application of the principle we've repeated several times, that death is different.

Mr. Napolitano: Death is different.

Ms Napolitano: Yes.

Mr. Napolitano: I mean, there's no doubt about it, Your Honor.

And... and your jurisprudence has said that.

But, you know, you don't have this kind of elaborate sentencing procedure in a non-death case either.

I mean, this is all driven by... by Furman and all of Furman's progeny to make sure that we are getting the right defendants and imposing the right penalty on those defendants.

And that's an Eighth Amendment issue and has not been, by this Court, expanded to the Sixth Amendment.

And... and again, if this Court were to overrule Walton and reopen all of the cases in Arizona, at least that are on direct review and in the other States, it's hard to imagine how you then would not also have to overrule Clemons, Hildwin, Poland, all the cases we've cited to the Court before, because they all recognize and state that these cases are different and that there is a separate rule for the judge in these kinds of cases.

Ms Napolitano: The... the difference obviously is that, of course, it's different.

It's worse, not better.

So, the obvious argument is that if you're going to insist that a jury find a fact that could enhance a sentence from 10 years to 15, surely a jury, when you're under the Eighth Amendment or the Sixth Amendment, should find the fact that could enhance the sentence from life in prison to death.

I mean, I think that's what it's--

Mr. Napolitano: Well, I think that's--

Ms Napolitano: --is the underlying point here.

Mr. Napolitano: --I think that's petitioner's basic argument, and... and our response is it's more complicated than that.

That doesn't really answer the question because in the death penalty world, the case law is different, the tradition is different.

This is all a creation of Supreme Court precedent, really not of the common law as it came down through colonial times.

And what is going on here are additional protections for a defendant, not fewer protections for a defendant.

And remember, in this case, you know, if you just took the... the literal language of Apprendi and... and didn't go beneath it, and you took the literal language of the Arizona first degree murder statute, the maximum penalty under the statute is death, and the judge is simply making a choice between life or death.

And the jury's verdict authorizes the judge to go forward and enter into that sentencing proceeding.

And that is a procedure that this Court has embraced, upheld, and specifically said does not violate the Sixth Amendment.

Ms Napolitano: Would you comment on your opponent's suggestion that that would apply to other statutes like the drug statute?

The maximum penalty under the same statute is life in prison and so forth, but nevertheless, Apprendi applies.

Or Apprendi itself... supposing the two... instead of two statutes, there had been one.

Would that have made a difference?

Mr. Napolitano: You know, in the statutory analysis that Apprendi suggests, part of that analysis is you have to look at each statute and how it was constructed and so forth.

I don't know whether automatically it would apply because, again, as I've made the argument today, the Eighth Amendment death penalty cases just are different.

But, again, if you overrule Walton, it... it is hard to imagine how any judge would have the authority under the Sixth Amendment to find any kind of fact that would be used to enhance a sentence.

And if that's what Apprendi is supposed to mean, that's a very, very broad ruling.

Ms Napolitano: To... to enhance a sentence beyond that which was otherwise authorized by law by the jury's verdict.

Mr. Napolitano: Well, or enhance a sentence beyond the presumptive sentence, because what's the difference between a sentence authorized and a presumptive sentence set forth in either guidelines or in legislation?

We're cutting very fine hairs here.

And I think the ultimate question is, what is the role of a jury?

Was that jury's role embraced by Arizona?

Yes.

Did the role of the jury in this case change at any time from what it was pre-Furman to post-Furman?

No.

Did the jury in this case know it was a death case?

Yes.

Did the defendant know it was a death case?

Yes.

Everyone knew it was a death case.

There's no surprise.

There's no adding on at the end, oh, by the way, we're going to ask for an additional 10 to 20-year enhancement like they did in Apprendi or an additional 10-year enhancement as in Jones.

None of that happened.

This was a death case from the beginning and it should be a death case now.

Thank you, Your Honors.

Ms Napolitano: Thank you, General Napolitano.

Mr. Hurwitz, you have 4 minutes remaining.

Mr. Hurwitz, would you address the question that General Napolitano made about this is an Eighth Amendment requirement, not a Sixth Amendment requirement, and that's a huge difference?

REBUTTAL ARGUMENT OF ANDREW D. HURWITZ ON BEHALF OF THE PETITIONER

Mr. Hurwitz: I... I will, Justice Ginsburg.

It seems to me that the State's position is that when a fact is required by State law at the policy whim of legislators in order to impose the maximum punishment allowed by law, that fact gets Sixth Amendment protection.

But when a fact is required by the Constitution or by decisions of this Court, that it somehow obtains less Sixth Amendment protection.

I would suggest there is no basis in the jurisprudence of this Court for that kind of conclusion.

What the Attorney General seems to be saying to you today are two things.

First, the State doesn't like Apprendi.

Hence, the distinction between facts that we added in order to impose sentences and facts that were elements of the crime.

But I suggest that problem was solved in Apprendi.

The separate question is whether or not, as Justice Stevens put it, death is so different as to require a different rule than in Apprendi.

And I would suggest that the purpose of the Sixth Amendment here, the protection of the right to jury trial, applies with no less force under a circumstance where the enhanced sentence may be from life to death than under a circumstance where the enhanced sentence may be from 10 years to 12 years.

It may well be true that this Court's Eighth Amendment jurisprudence is unique, but in the context of the Sixth Amendment, in the context of the facts necessary and specified by State law, in order to allow the maximum punishment allowed by law, there should not be an Eighth Amendment exception.

The State has chosen to make specific facts necessary for the imposition of the ultimate sentence, and when the State chooses to do so, whether it chooses to do so because it merely thinks it's a good idea or it chooses to do so because the Constitution of the United States requires it to do so, the same Sixth Amendment principle ought to obtain.

And that Sixth Amendment principle is that you're entitled to have the jury find those facts.

With respect to the question Justice Breyer asked... and I think as clarified, it's important to note, the second issue is really an Eighth Amendment issue, and that Eighth Amendment issue is not one that we... that we urge in this case.

But even if you don't urge that Eighth Amendment issue, the underlying Sixth Amendment issue strikes us as precisely the same.

And therefore, you may have a system under which a judge can do this ultimate weighing, this ultimate discretionary decision at the second level of whether this is a particular penalty that's appropriate for this defendant.

But the State's narrowing, the State's choosing of factors and putting them in its law and saying to the defendant, this is a fact that must be found before you can receive this maximum sentence, is a Sixth Amendment point.

One final point.

With respect to notice, this is plainly not a notice case.

I don't believe Apprendi would have come out a single bit differently if, before his trial, Mr. Apprendi was told you're going to be tried on the firearms charge and at the end of the charge, the judge is going to determine whether there's racial motivation and he's going to give you an additional sentence.

Apprendi was not about notice.

This case is not about notice.

This case is, however about that central Sixth Amendment point, and I would suggest to the Court that try as you might, unless you simply say in the end we're going to have a different rule for capital punishment, you can't distinguish the issues in this case and the underlying Sixth Amendment principle from the principles in Apprendi.

And for that reason, we suggest that this case is controlled by Apprendi and that the sentence of death imposed on this petitioner was inappropriate under the Sixth Amendment.

Chief Justice Rehnquist: Thank you, Mr. Hurwitz.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Hope v. Pelzer - Oral Argument

Fri, 09 Jan 2009 14:50:25 +0000

Case:

Hope v. Pelzer

Media File:

01-309_20020417-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF CRAIG T. JONES ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in Number 01-309, Larry Hope v. Mark Pelzer.

Mr. Jones.

Mr. Jones: Thank you, Mr. Chief Justice, and may it please the Court:

Under United States v. Lanier, the law was clearly established for purposes of qualified immunity when it gives officials fair warning that their conduct is unlawful.

The fair warning standard is met when a rule laid out by prior law applies with obvious clarity to the conduct in question, even if the rule arises from a case involving different facts.

The materially similar facts requirement of the Eleventh Circuit is an unwarranted gloss upon the fair warning standard, just like the fundamentally similar facts requirement which this Court unanimously rejected in Lanier.

It is an impermissible gloss because it emphasizes similarity of fact over clarity of ruling.

Unidentified Justice: And what should be the rule that you say was violated here?

If we write out the opinion, we'd say the rule that the officer should have known is, and we have to fill in the blank.

What is that rule?

Mr. Jones: The rule established by the Eleventh Circuit's own precedent is that it is unconstitutional to punish an inmate through the use of restraint, and restraint is punitive if it goes beyond the point in time which is necessary to quell a disturbance or immediate threat.

Unidentified Justice: Does the include solitary confinement?

Mr. Jones: No, Your Honor.

Restraint involves total physical immobility coupled with the pain and discomfort attendant to that.

Unidentified Justice: And what case establishes that proposition?

Mr. Jones: Well, there is a--

Unidentified Justice: Any physical restraint is unlawful.

What case establishes that?

Mr. Jones: --Physical restraint, the precedents speak of physical restraint to a fixed object.

Unidentified Justice: Yes, and what precedent in particular?

Mr. Jones: Gates v. Collier is the first case of a body of law which has developed in our circuit, Justice Scalia.

Gates v. Collier was a 1974 Fifth Circuit decision which was binding upon the present Eleventh Circuit and it held that a variety of forms of corporal punishment--

Unidentified Justice: That's my problem.

It was a whole variety.

They didn't say that any single one.

I mean, as I recall that case, there are a number of instances of brutality against prisoners, and the holding of that case was that that was cruel and unusual punishment, but I don't recall that case saying that any single one of the many instances that the case recited, one of which was physical restraint, would qualify.

Mr. Jones: --Your Honor, the Fifth Circuit decision in Gates affirmed a district court decision which specifically enjoined each and every one of those punishments, and the fact that--

Unidentified Justice: And you think that amounts to a holding that any single one of them would have violated the Eighth Amendment?

Mr. Jones: --Yes, Your Honor, if used punitively, that is correct, and--

Unidentified Justice: But the court ordered stopping each and every one of those measures.

Wasn't that the nature of the injunctive degree, not just a combination of them, but each one?

Mr. Jones: --Yes, Justice Ginsburg.

This was not a case where the court viewed the totality of the circumstances and said that the conditions constituted cruel and usual punishment and ordered the State of Mississippi to build a new prison.

This was a case where the State was specifically enjoined--

Unidentified Justice: Did the reasoning follow that line?

Mr. Jones: --Well--

Unidentified Justice: Was the reasoning of the opinion, did it examine each one individually and say each one individually was cruel and unusual?

Mr. Jones: --It examined a variety of practices, and those practices were discussed in a subsection called corporal punishment.

The fact that Gates involved multiple holdings does not make it any less important in clearly establishing the law, otherwise a case could only clearly establish the law if it had a single holding.

The fact that Gates v. Collier drew multiple bright lines as opposed to a single bright line did not make--

Unidentified Justice: Do we need--

Mr. Jones: --Yes.

Unidentified Justice: --In this case, do we need to get into the issue, Mr. Jones of what this Court's holdings amount to on this subject, or are we just limiting ourselves to the Eleventh Circuit, perhaps the old Fifth Circuit?

Mr. Jones: With respect to the underlying constitutional violation, or with respect to qualified immunity analysis?

Unidentified Justice: With respect to each.

Mr. Jones: Well, Your Honor, this Court has never squarely addressed the constitutionality of continued restraint as a form of corporal punishment.

It has acknowledged in decisions that restraints can be harmful.

Unidentified Justice: I suppose one would have to do that, yes.

Mr. Jones: Yes, that's correct.

Unidentified Justice: Are you relying on anything beyond the restraint itself?

I mean, in the facts that have been recited, the facts include leaving the individual in the sun without a shirt on, and not giving him bathroom breaks, and pouring water out in front of him to taunt him.

Are you relying upon those features?

Mr. Jones: Not as... not for the proposition that the law was clearly established, with regard to those facts.

Those facts are certainly relevant on the issue of the damages suffered by the--

Unidentified Justice: Well, do we have to assume that the facts as alleged are true for purposes of deciding whether summary judgment is appropriate?

Mr. Jones: --Based... Justice O'Connor, based upon the grant of certiorari by the Court, the issues raised in the petition, and the grant, I think that is correct.

Unidentified Justice: I would assume we... I gather we just assume those are correct for purposes of evaluating the summary judgment question.

Mr. Jones: I think that is correct.

Unidentified Justice: And the Eleventh Circuit decided there was a constitutional violation?

Mr. Jones: Yes, Your Honor.

Unidentified Justice: And there was no cross-appeal on that.

Mr. Jones: That is correct, Your Honor.

Unidentified Justice: So do we take that as a given, too?

Mr. Jones: I think that this case is like Saucier, where the Court acknowledged that the first step be the inquiry of whether there was a constitutional violation made out by the facts.

That was resolved by the circuit court.

Unidentified Justice: Well, that gets back to the Chief Justice's question, and I'm wondering again if the Court writes the opinion giving you the judgment that you seek, isn't it necessary for us to say, a) this law was clearly established, and b) it is a correct interpretation, a correct exposition of the Cruel and Unusual Punishment Clause, so we are... it would be a rather odd holding for us to say, well, this was established in the Eleventh Circuit, but we're not telling you whether or not that was right.

Mr. Jones: Well, I think, Justice Kennedy, because the certiorari was only granted on the second part of the Saucier test, that is, on the clearly established inquiry, the Court could limit its ruling to the issue of whether the law was clearly established and whether, specifically whether the Eleventh Circuit applied the proper standards in determining whether--

Unidentified Justice: Well, maybe Justice Kennedy is suggesting that it's fairly included within the question granted, that it's quite impossible for a judge to say that it does or does not violate a clearly established constitutional principle if he doesn't think that it violates a constitutional principle at all, clearly established or otherwise.

I mean, isn't... doesn't... the one sort of wrapped up in the other?

Mr. Jones: --Yes, Your Honor, and I think that it is fairly included.

My point is that--

Unidentified Justice: I take it your position, though, is that all we have to decide is whether the substantially similar standard is the proper standard, and if we say no, it's not, that's like Lanier, which was... what was it?

substantially identical, I guess, wasn't it, something like that?

Mr. Jones: --The verdict was fundamentally similar--

Unidentified Justice: Fundamentally, yes.

Mr. Jones: --in Lanier.

Unidentified Justice: And if we say that that gloss, the substantially similar gloss was wrong, what you want us to do is simply vacate and send the thing back, or do you want us to go further and say, no, in fact, there... we determined that there can be no sovereign... that there can be no qualified immunity here, because if we have to go the second step, then we have to get into the issue, it seems to me, that Justice Kennedy has raised.

Mr. Jones: Your Honor, I believe that the first... the issue of whether there's a constitutional violation is fairly included within the questions which were granted by the Court.

Unidentified Justice: All right.

Now, if that's what we're going to get into, so we will determine what the violation was and then get to immunity with respect to that particular violation, we won't confine ourselves simply to the substantially similar verbiage, then I go back to my earlier question, and I take it... and I think you've answered it, but I want to make sure I understand you... for purposes of determining whether there's a constitutional violation, you are not arguing, I take it, that we should take into consideration the particular circumstances of the day, the heat, the shirt, the bathroom breaks, the water, is that correct?

All we look at is the restraint itself?

Mr. Jones: Yes, Your Honor, because the conduct of these defendants was to restrain this man as a form of punishment.

Unidentified Justice: And some of the allegations of the facts have been questioned, and one point was about the lack of bathroom breaks.

There's nothing in the pleadings... the pleadings didn't allege lack of bathroom breaks, and how does that get into the cases if the other circuits didn't mention that either?

Mr. Jones: Well, I think it got into the case because the respondents wanted to argue the case rather than the law.

Unidentified Justice: But that had not been found below, and it hadn't been even asserted in the complaint, is that correct?

Mr. Jones: Yes, that is correct, except to the extent that the affidavit of the plaintiff was referenced, I think incorporated by reference into the pleadings.

Unidentified Justice: And the plaintiffs affidavit said that specifically, that he wasn't allowed bathroom breaks?

Mr. Jones: The plaintiff's affidavit is that he was left on the hitching post for 7 hours, and the fair inference that can be drawn from that is that he was restrained for 7 hours without breaks, and there's certainly no evidence rebutting that with respect to the second incident, which he was on the hitching post.

The first incident he was on the hitching post, there is evidence that he was given one bathroom break, and he was taken down that incident only after 2 hours, which in itself is--

Unidentified Justice: That, we got into that.

That is, I think, disputed even as to the first instance because I think that the State said he had been offered other breaks but he had declined them.

Well, that's one thing, and another argument that was made about the background, if we're going to get anything beyond the hitching, that the particular officers' names were not involved in some of the worst aspects of that.

That is, the officers that are named defendants here didn't tell Hope to take off his shirt, and didn't pour water in front of him and have the dogs drink it.

Those were other people who are not named defendants, and you don't contest that, do you?

Mr. Jones: --I do not contest that reading of the record, Justice Ginsburg.

Unidentified Justice: They didn't keep him on there for 7 hours, as far as we know.

Do we know that they were in charge of how long he would stay there?

Mr. Jones: We do not know that, Your Honor, although we do know that it was their expectation that he be restrained indefinitely.

Findings in other cases indicate that... including the published case of Austin v. Hopper, indicate that inmates were routinely left on the hitching post for the remainder of the day.

Unidentified Justice: You say indefinitely.

According to the prison policy, they were kept on until they agreed to go back to the work crew without disrupting it, so that he could have been released at any time that he said I'm ready to go back on the work crew and do the work, right?

Mr. Jones: Justice--

Unidentified Justice: That's what the prison policy says, anyway.

Mr. Jones: --Well--

Unidentified Justice: Now, is the contention in this case that he was prepared to... you see, I don't understand what they could have done.

Here is a prison that has a policy of having work crews.

You don't contend that that's cruel and unusual punishment, right?

Mr. Jones: --That is correct.

Unidentified Justice: And the allegation is that this prisoner refused to work in one case, and disrupted a work crew in another case, and according to the prison policy... I mean, you have to do something when he does that.

To take him back and say, oh, you know, you've got to go back to prison, he says yes, that's exactly what I want.

What was the prison supposed to do?

Mr. Jones: Well, Justice Scalia, in both instances he was being punished for fighting.

He was being punished for--

Unidentified Justice: Disrupting the work crew.

Mr. Jones: --For an altercation.

Unidentified Justice: Okay.

Mr. Jones: An altercation which subsided at the work site, which was miles away from the prison property, and after he... in each instant after he was restrained and subdued, and whatever disruption he was a part of had abated, he was put into a van for 20 minutes without incident, another 20 minutes were spent transporting him to the facility without incident, he was then walked without incident, without the necessity for the use of force, to the post.

Unidentified Justice: And the work rules were not brought up by the State.

The Eleventh Circuit said specifically, we are not going to consider these work rules because they were never put in the district court record as a reason for the officer's behavior in question.

Mr. Jones: That is correct, Justice Ginsburg, and if they were in the record, the evidence would also be they were not followed, which was also consistent with the finding of the Middle District of Alabama in the case of Austin v. Hopper.

Unidentified Justice: Quickly, what are we supposed to take as the fact?

Do we take the fact in the second affidavit of Larry Hope?

Mr. Jones: Yes.

Unidentified Justice: Okay.

There's nothing about bathroom breaks in that.

Mr. Jones: That is correct, but the critical time element here is the time it took them between the time that the disruption had abated and the time that they decided to punish him for past conduct which had occurred an hour earlier and 10 miles away.

That is the critical time element, not the amount of time--

Unidentified Justice: You say it's critical.

Why is that critical?

I mean, must they decide to punish him instantaneously or never?

Mr. Jones: --It's critical, Your Honor, because restraint is not a proper form of punishment under those circumstances.

They can suspend privileges, they can take away TV--

Unidentified Justice: You say no kind of restraint is permissible?

Mr. Jones: --Not as a form of punishment.

If they need to restrain him to maintain order and discipline at the scene of exigent circumstances, that's perfectly proper.

Unidentified Justice: Or to make him go back to work.

You say that that issue is not in this case.

You say that there's not in this case the fact, contended by the State, that the only reason he was restrained was to get him to agree to go back to the work crew, and that as soon as he said okay, I'll go back and I won't disrupt it any more, he would have been released.

You say that's not in the case.

Mr. Jones: Yes, Your Honor, because if you fight with five prison guards, you're not going to be able to escape punishment simply by--

Unidentified Justice: So we should leave open... even if we decide in your favor, you want us to leave open the question of whether this prison could follow the policy that it has in effect, namely, only restraining people this way as a means of inducing them to go back to the work crew.

That would be left open.

Mr. Jones: --Yes, Your Honor.

We're not attacking the policy.

We're attacking the conduct which was used in this case in violation of clearly established law.

Thank you.

Unidentified Justice: Thank you, Mr. Jones.

Mr. Schlick, we'll hear from you.

ORAL ARGUMENT OF AUSTIN C. SCHLICK ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Mr. Schlick: Mr. Chief Justice, and may it please the Court:

An official is immune from personal liability for violating Federal rights unless the violation would have been clear to a reasonable officer.

Where, as here, the governing legal standard does not itself establish a violation, the practical inquiry would be whether the violation was established by case law is not distinguishable in a fair way.

Unidentified Justice: What, in your view, is the governing legal standard that you just referred to?

Mr. Schlick: The overarching standard would be the Harlow v. Fitzgerald, where the law was clearly established.

The--

Unidentified Justice: Well, I thought... you're not talking, then, about a substantive standard?

Mr. Schlick: --In that, in the particular context where one looks to case law, this Court's decision in Saucier v. Katz uses the formulation whether the facts were distinguishable in a fair way, and that would be an appropriate gloss as well.

Now--

Unidentified Justice: I mean, we start with a prohibition for substantive law, the prohibition against cruel and unusual punishment.

Then how do we work ourselves down from there, or up from there, whatever you want to call it?

Mr. Schlick: --Yes, Your Honor.

We would urge the Court in this case to take the case on the terms on which it was briefed and decided in the Eleventh Circuit, that is whether the law they applied in the Eleventh Circuit in 1995 clearly established the violation.

In that context--

Unidentified Justice: Then we don't get into the question of our own view whether... what the law might, or the result might be in this case?

Mr. Schlick: --Even under that approach, the first step would be to ask whether this Court's decisions themselves gave clear notice, and the answer to that in our view would be no.

It's only because of the Gates v. Collier decision that these officers had fair warning, had clear notice.

Unidentified Justice: So then the result could be one thing in the Eleventh Circuit and another thing in the Fourth Circuit?

Mr. Schlick: Yes, the... it could be.

This Court hasn't definitively decided whether, when it takes a qualified immunity case, it should analyze the case in light of its own law solely, or whether it should give greater weight to the relevant circuits.

In this case, we think it would give most guidance to the lower courts to analyze the case as the Eleventh Circuit did.

Unidentified Justice: But what is the standard that the officers should have been aware of, first in the Eleventh Circuit, and then, assuming that we think we... that this case presents either the necessity or the proper opportunity for us to say what the national standard ought to be, what is the standard at a more specific level of abstraction than Cruel and Unusual Punishment Clause that we should be dealing with?

Mr. Schlick: Justice Kennedy, let me address the Eleventh Circuit first.

In the Eleventh Circuit, the reasonable officer would have looked to the Gates v. Collier decision, noted that it held that it violates the Eighth Amendment to punish an inmate by handcuffing the inmate to a fence for a prolonged period of time, or cell bars for a prolonged period of time, or forcing him to maintain an awkward position for a prolonged period of time.

The reasonable officer--

Unidentified Justice: Even if... do you maintain that the issue of whether it was done only to get him to return to the work crew is not in the case?

Mr. Schlick: --Yes.

Unidentified Justice: We have to assume that he was just put on there to punish him, and he couldn't have been released if he had said I'm ready to go back to the work crew?

Mr. Schlick: Yes, Justice Scalia.

The Eleventh Circuit we think correctly explained that's not a fair inference from the record as we must take it.

In the Eleventh Circuit, the reasonable officer would... could not have concluded that there is a constitutional difference between handcuffing an inmate to a fence or a cell bar and handcuffing an inmate to a metal pole.

Accordingly--

Unidentified Justice: For purposes of punishment?

Mr. Schlick: --For purposes of punishment.

Unidentified Justice: You have to add that.

Mr. Schlick: Yes, Your Honor.

Unidentified Justice: And you're content to have us hold these officers liable when a few years down the line we may find that the Eleventh Circuit's opinion was wrong?

Mr. Schlick: Your Honor, we don't suggest a view one way or the other on liability.

We're simply suggesting that to grant qualified immunity at this stage of the case was improper.

That brings me, though, to the second question--

Unidentified Justice: Well, I understand, but I mean, they would be stripped of their qualified immunity even though the Eleventh Circuit's opinion was wrong, and we find it to have been wrong when we finally confront that issue.

Mr. Schlick: --I think that suggests Justice Kennedy's second question, which was, absent Gates, how would the case be viewed, and in that situation--

Unidentified Justice: And don't you think we have to reach that?

Mr. Schlick: --No.

No, we don't think so, Your Honor, because it wasn't included in the petition or in the questions on which this Court granted certiorari, and really it hasn't been squarely faced by the parties, because the State is defending the Regulation 429 rather than the facts that must be taken as true in this case.

Unidentified Justice: Well, it's not defending Regulation 429, according to you.

Regulation 429 as it reads says, he is released as soon as he agrees to go back to the work crew without disruption.

Mr. Schlick: That's right.

My point, Justice Scalia--

Unidentified Justice: So regulation 429 is not in the case, according to you.

Mr. Schlick: --is that the respondents have briefed the case as if they were acting in compliance with Regulation 429, which is not in our view how the case must be taken.

Now--

Unidentified Justice: At least the case in the Eleventh Circuit, because it wasn't in the case.

It wasn't in the case before the district court.

It was... in the district court it was just restraint as punishment.

The idea of this being a temporal measure to get him to go back to work doesn't show up till the Eleventh Circuit, and the Eleventh Circuit rejects it because it wasn't raised in the district court.

Mr. Schlick: --That's correct, Justice Ginsburg.

Unidentified Justice: So the regulation is not before us, you're saying.

Mr. Schlick: That's correct.

Unidentified Justice: Okay.

Mr. Schlick: To answer Justice Kennedy's second question, how would this Court address the issue if Gates v. Collier did not exist, in that case, a reasonable officer... the question would be, what would a reasonable officer... what would have been clear to a reasonable officer.

The reasonable officer could have made a colorable argument that the appropriate analysis is the deliberate indifference standard established by this Court's decision in Farmer v. Brennan, that standard being whether the officer was deliberately indifferent to a substantial risk of serious harm.

The reasonable officer could further have concluded that neither the May incident in this case nor the June incident in this case presented a substantial risk of serious harm.

Unidentified Justice: So you think deliberately indifferent is a sufficient standard for the imposition of liability without more specificity.

All officers must be aware that their specific acts can be challenged under the general standard of deliberately indifferent.

Mr. Schlick: Yes, we think it would be sufficient to establish a substantive violation of the Eighth Amendment, although as the facts must be taken here, qualified immunity would attach, because there's a colorable argument that the threshold was not crossed, but I'd want to say that this Court has not resolved whether it's this deliberate indifference standard or rather the Hudson v. McMillian test, the excessive force test of whether force was used maliciously and sadistically to inflict harm, and that is an unresolved question, is, it's... that is that very absence of certainty that would be most relevant absent the Gates v. Collier decision.

In this--

Unidentified Justice: Suppose I think that I have to reach the question of whether it would violate the Constitution, not just whether the Eleventh Circuit said it would.

Do you think it would violate the Constitution to make the inmate stand in a corner, to immobilize him to that extent?

Mr. Schlick: --You would need to know more, not--

Unidentified Justice: To go stand in the corner.

Mr. Schlick: --Not in all instances, no, Your Honor.

Unidentified Justice: So what makes the difference is, you say stand in the corner, and I'm going to handcuff you, and that's the difference between cruel and unusual, and not cruel and unusual?

Mr. Schlick: The relevant considerations, Justice Scalia, would be the degree of pain and the threat to the safety of the inmates.

Unidentified Justice: It's not necessarily the degree of pain.

Being handcuffed to some immobile object, any... not much more than standing in a corner.

Mr. Schlick: The overarching question of whether the pain was wanton and unnecessary would focus on the degree of pain, the penalogical justification, and the threat to the inmate's safety, so you would need to know the facts that bear on those inquiries.

In this case, as I've said, the Eleventh Circuit decision of Gates v. Collier was directly on point.

It provided sufficient certainty for the officers here, and it was correct in that as applied to these facts, under this Court's decisions, there was an Eighth Amendment violation.

Unidentified Justice: I didn't understand your last statement.

You say, it would depend on the facts, the degree of pain, the circumstances.

I thought your argument for the proposition that any physical restraint as a form of punishment is bad.

Mr. Schlick: No, Your Honor.

That--

Unidentified Justice: You're not.

Mr. Schlick: --It's the petitioner's position, but not a position of the United States.

Unidentified Justice: Ah.

All right.

Mr. Schlick: If the Court has no further questions--

Unidentified Justice: Thank you, Mr. Schlick.

Mr. Forrester, we'll hear from you.

ORAL ARGUMENT OF NATHAN A. FORRESTER--

ON BEHALF OF THE RESPONDENTS--

Mr. Forrester: Mr. Chief Justice, and may it please the Court:

In the last 15 years, at least eight Federal master judges and eight Federal district judges in Alabama have read the law to hold that handcuffing a prisoner to a restraining bar or to a similar stationary object does not violate the Eighth Amendment.

Unidentified Justice: --Have they discussed Gates?

I didn't go to look at the district court opinions, though you cited them, but did those opinions discuss Gates?

Mr. Forrester: No, Justice Souter, they didn't pointedly cite Gates.

Unidentified Justice: Did they just ignore the pre-Eleventh Circuit precedent?

I mean, how did they get by without--

Mr. Forrester: Primarily they refer to the subsequent authority in Williams v. Burton and Ort v. White, and I don't think that we can presume that they stargazed and ignored it, or that they just thought that case really had been largely superseded by this subsequent clarifying authority.

Unidentified Justice: --What was the subsequent clarifying authority?

Gates was a specific injunction.

It said, we won't use physical restraints or punishments.

What came after from the Eleventh Circuit that modified that injunction?

Mr. Forrester: Well, the proposition for which petitioner's amici wish this Court to read Gates and say that our respondents should have read Gates is this very broad proposition that any form of restraint as a form of punishment is unconstitutional, although that proposition has clearly been narrowed not just by the Eleventh Circuit's rulings and rulings in Williams v. Burton and Ort, which indicated that certainly in an excessive force context you could restrain a prisoner for a period of time, but also by this Court's rulings in Wilson v. Seiter and Whitley v. Albers, and the clarifying ruling in Farmer v. Brennan, where this Court indicated that the fact that a restraint was possibly objectively problematic is not enough to create an Eighth Amendment right.

There had to be--

Unidentified Justice: If we are assuming the fact as alleged, as it was used here, not to quell a riot, not to keep things calm in an interim, but as a means of punishment... because that's what I understood the injunction in Gates was, not, you couldn't use restraints in a temporary situation, but that you could not use it strictly for punishment purposes--

Mr. Forrester: --Well--

Unidentified Justice: --And that, as far as I know, hasn't been modified.

Mr. Forrester: --A couple of responses to that.

The first is that the restraint was not used in this case as a form of punishment.

Petitioner never alleged or presented evidence that it was used as a form of punishment.

That phrase does not appear anywhere in his first affidavit or his second affidavit.

He simply says that he was put on the bar, and our respondents put him on the bar not to punish him, per se, but because he was refusing to work under the regulation.

Unidentified Justice: But you didn't bring up the regulations in the district court.

At least the Eleventh Circuit said it was nowhere in the record.

Mr. Forrester: Well, first of all we think that the Court's entitled to take judicial notice of it, because it is the law, that you don't have to actually introduce the law into the record, but on top of that, it was always in the mix.

The district court... the activity log for the petitioner's first day on the bar is a copy of the log that comes from the appendix to the regulations.

Unidentified Justice: What has that got to do with it, that reg?

I mean, so what?

That is, his allegation is that he was left for 7 hours on a very hot day with his arms about over his head, standing up, and given no water, except once, so there are 3 hours at least without any water.

All right, that's his allegation.

Now, introduce any regulation you want, why doesn't that create an issue for trial?

Mr. Forrester: Well, because, the Your Honor, the most important fact there is that he could have gotten off the bar--

Unidentified Justice: I don't see anything, all right, that he said that was so, and I don't see anything where anybody in the record said that was so.

Mr. Forrester: --The regulation--

Unidentified Justice: So what is the regulation?

Did you move, did you say... did you say... I don't see in these papers in front of me, say that the reason we're entitled to summary judgment is, it was ordinary practice to let the person go off, and then you'd cite that, and here they're following ordinary practice.

Now, maybe then they'd have to have replied, but I couldn't find anything like that.

Where does it say that in the trial court?

Mr. Forrester: --No, Your Honor, we didn't say that, but it was petitioner's--

Unidentified Justice: Then why isn't it--

Mr. Forrester: --Because it was petitioner's burden, as the plaintiff, to set forth the facts that made that his claim.

Unidentified Justice: --They set forth facts.

Mr. Forrester: And once we--

Unidentified Justice: They set forth facts, and the question is, why doesn't that... I gave you the facts, and why doesn't that present... I would have thought as a trial judge you'd say, of course that's an issue for trial, unless, of course, there's something unusual here, something unusual that may be... and you're saying... where is this counter thing in the trial court?

I don't see it.

I have nothing... I take it I should take this case as there having been nothing along the lines you're talking about in the trial court.

Mr. Forrester: --The activity log that is in the record is--

Unidentified Justice: What page should I look at?

I'll look at whatever you tell me to look at in the trial court.

Mr. Forrester: --It's pages 38 in--

Unidentified Justice: I read through once, and I could find nothing--

Mr. Forrester: --I'm sorry, Your Honor.

Pages 38 and 39, the activity log.

Unidentified Justice: --Where do you find that, the joint appendix?

Mr. Forrester: Of the joint appendix.

Unidentified Justice: 38 and 39?

Mr. Forrester: Yes, Your Honor.

Unidentified Justice: Is that of the second incident?

I thought there was no activity log of the--

Mr. Forrester: Yes, that's the first incident.

Unidentified Justice: --All right.

The activity log, as far as I see it, says nothing about what you're saying.

It just says he was placed on a restraining bar for a fight.

Mr. Forrester: Yes, Your Honor.

It refers to the two--

Unidentified Justice: I've looked at it now.

What does it say?

Mr. Forrester: --It refers to the two conditions that are the conditions for using the restraining bar under reg 429.

Unidentified Justice: Why don't you read that?

Mr. Forrester: Refusing to work and being disruptive to the work squad.

Unidentified Justice: And what it says is, refusing to work, fight.

Mr. Forrester: Yes, Your Honor.

Unidentified Justice: That's the reason that they put him on the bar.

Okay.

Now what?

Mr. Forrester: Yes, Your Honor.

Now, the bottom of the next page... unfortunately there's a typographical error in this appendix, but it says, Annex A to AR 119.

That should be 429, and we have gone back and checked.

The actual copy of this log in the record says, AR 429.

Unidentified Justice: Yes, and it says that right after it says, restraining bar to be used only during daylight hours, Annex A to AR-119, so... now, what has that to do with it?

Mr. Forrester: That refers... that's actually 429, and that is the regulation.

Unidentified Justice: Okay.

Let's suppose that you're a genius as a trial judge, and you happen to know that when it says here AR-119 it means AR-429, okay.

Now, what it said is, restraining bar to be used only during daylight hours, cite, 429.

Now, how does that help?

Mr. Forrester: Well, reg 429 is what these respondents were following when they put him on the bar, and this petitioner has not alleged that when he was put on the bar he could not have gotten off.

Unidentified Justice: Okay.

I'll take that into account.

My other question is whether or not it is the case that any human being would know that it is cruel and unusual to keep a person, if that's what happened... it's what he's alleged... keep a person chained with his arms over his head, handcuffed to a bar, for 7 hours, in the hot sun, not giving him water but for once, so he goes at least 3 hours without water.

Now, is there a case that would confuse what I think would be ordinary common sense on that... at least, or tell me why that isn't ordinary common sense to think that that is very cruel, and certainly an unusual thing to do.

Mr. Forrester: Yes, Your Honor.

Let me preface my response with one quick... he wasn't cuffed with his hands over his head.

They were chest high.

His own pictures show that in the joint appendix, but I would draw Your Honor's attention to a district court opinion which is transcribed in the joint appendix.

It starts at--

Unidentified Justice: One of my pictures happens to show it's slightly up here, his hands, and the others show it's about eye level.

Mr. Forrester: --And he's slumping.

The... I would like to draw Your Honor's attention to this district court opinion that is transcribed in the joint appendix at page 81.

It's entitled, Whitson v. Gillikin, and this was a 1994 case.

This was 1 year before the events in this case.

Jim Gates, who is one of the respondents here, was a defendant in this case, and in this case the prisoner alleged that he was put on the bar for 8 hours in 95-degree heat, which is hotter than this case, was not given any water, was not given any bathroom breaks, which has not been alleged in this case.

The district court, or rather the magistrate judge appointed counsel for this pro se litigant, instructed counsel to go out and provide supplemental briefing on the question of whether that circumstance violated a clearly established right, and the court said, I have done my own diligent search... this is on page 89... the court has made a diligent search of the case law, I requested additional brief from the parties, and neither the court nor the parties have identified any cases binding or otherwise in this circuit in which it was found that the Eighth Amendment as violated in these circumstances.

Now, we submit that if you have a learned authority such as this reading the law that carefully and not finding it in this manner, it would be exceedingly unfair to hold our respondents--

Unidentified Justice: This is--

Mr. Forrester: --responsible for doing the same.

Unidentified Justice: --a post... post Gates?

Mr. Forrester: Yes.

This is a 1994 case.

This is 20 years after Gates.

Unidentified Justice: And it seems to me exceedingly careless for the counsel who was appointed not to bring that to the magistrate judge's attention.

Mr. Forrester: Your Honor, in 28 years since Gates v. Collier, no Federal court of which we are aware has ever read it for the broad principle that petitioner now seeks to read it in this case.

It's clear in the context of Gates v. Collier that the officers there were employing... were handcuffing prisoners to cells and to fences for malicious and entirely arbitrary reasons.

They had no valid penalogical purpose whatsoever.

Unidentified Justice: The more drastic episode in this case was the second episode, and there you can't even point to an activity log, didn't even write it up.

The State treated it as though it didn't happen.

Mr. Forrester: Well, Your Honor, it's not clear that they didn't write it up, and furthermore it wasn't respondent's responsibility.

Unidentified Justice: Whose burden was it... whose burden would it be to show an entry in the activity log?

After all, the prisoner doesn't... is not the custodian of that log.

Isn't it the State's obligation to bring it forward, just as it was brought forward with respect to the first instance?

Mr. Forrester: Yes.

We attempted to find it, and just couldn't find it, and these three respondents, moreover, were not personally responsible for the activity log.

They weren't responsible for keeping it because they weren't the one supervising him, and they weren't responsible for his custody after it was kept.

Unidentified Justice: They weren't responsible for how long he was left on the bar, either.

Mr. Forrester: Correct, Your Honor.

Unidentified Justice: Which makes me wonder whether it was your burden to bring in the regulation or, rather, whether it was the burden of the plaintiff to show that these defendants, when they put him on the bar, knew that he would be left on the bar for 7 hours, and if that was their burden, it seems to me it's not up to you to volunteer the defense which is in the public record, that in fact, if the prison policy was followed, he wouldn't have been left there for 7 hours as soon as he agreed to go back to the work crew.

But it's your position, I take it, that so long as the regulation was in place so that he could go back to work, that the State could legitimately keep him--

Mr. Forrester: Yes.

Unidentified Justice: --hanging to this rail for as long as it takes, no matter how hot it is, and without water, for as long as the State chooses to use it, just so long as the regulation is there that says, you can go back to work?

Mr. Forrester: No, Your Honor.

Unidentified Justice: Is that your position?

Mr. Forrester: No, Your Honor, not hanging from the rail.

Unidentified Justice: Well, like this.

Mr. Forrester: Chest high... chest high, like this--

Unidentified Justice: All right.

Mr. Forrester: --where he can stand fully erect--

Unidentified Justice: In this case, handcuffed to the rail--

Mr. Forrester: --Yes, Your Honor.

Unidentified Justice: --for as long as the State wishes without administration of water or bathroom breaks, just because there's a regulation that says he can go back to work.

That's your position?

Mr. Forrester: No, Your Honor.

The regulation clearly entitles him to regular water and bathroom breaks.

Unidentified Justice: But the allegations are that he was not given water and not given bathroom breaks.

We take those allegations as true for purposes of a summary judgment motion.

Mr. Forrester: No, Your Honor, he did not allege, ever, nor present evidence that he was denied a bathroom break, and he did not allege that he was denied water.

He simply said that during one 3-hour stretch these two other defendant, nondefendant officers, who are clearly not these three respondents, deprived him of water and... you know, in acts--

Unidentified Justice: --certainly in the hot sun for 3 hours without water is fine.

That's fine?

Mr. Forrester: --If it is being done because he has refused to work... and I would hasten to add, Your Honor, this is--

Unidentified Justice: But we have nothing in the record, as I understand it, to indicate that.

Your position on that, as I understand it, is that's what the regulation makes clear, that that's why they were doing it, but the regulation is not on the record, and I don't see any basis upon which a United States district court is required to take judicial notice of every State's prison regulations if the State doesn't want to put it into the record.

Mr. Forrester: --Yes, Your Honor.

I mean, I would note that even in the absence of the regulation the district court didn't find his allegations in evidence sufficient to make out a claim that would withstand qualified immunity, so introducing that only makes the case all that stronger, but I would hasten to add that the Court did make a finding that he was put on the bar because he was disruptive to the work crew... work squad.

That is the condition in the regulations.

He was not put on the bar for a strictly punitive purpose in the sense that petitioners are arguing--

Unidentified Justice: Can you help me with this, Mr. Forrester?

The assumption seems to be in the State's argument that if you restrain a person in order to... then choose the word, convince, coerce him to do something, that is not punishment.

I thought one of the purposes of punishment was rehabilitation, or corrections, as well as deterrence and prevention.

Mr. Forrester: --Yes, Your Honor.

Unidentified Justice: Why isn't this punishment if you're doing this in order to have him comply with your command?

Mr. Forrester: Yes, Your Honor, it is certainly punishment in the broad sense.

For instance, it is a part of prison life.

We're not saying that it shouldn't be analyzed as to whether it's cruel and unusual, but in the narrow sense in which they are using it, and in the narrow sense in which Ort v. White sought to distinguish punishment from what it termed an immediately necessary coercive measure, this requires--

Unidentified Justice: Yes, but Mr. Schlick, can I just ask you about the case you called our attention to on page 89-90 of the... and there, according to the magistrate judge's opinion, Judge Putman, in that case the plaintiff was refusing to check out in his work detail, but then he gave him the choice of either working or being handcuffed to the security bar.

There's no such allegation in this case, is there?

Mr. Forrester: --Petitioner never alleged that he couldn't have gotten off the bar--

Unidentified Justice: But you didn't allege that you gave him the choice, did you?

Mr. Forrester: --The petitioner bears the burden, as the plaintiff, to say I could not have gotten off the bar if I had asked for it.

Unidentified Justice: I must say, I can't understand why that wasn't put in by the State.

I can't... I cannot imagine why the State did not raise that point, that he could have gotten off the bar at any time by just saying, I'll go back to work.

Why... what's your explanation for that?

Mr. Forrester: Well, it is a regrettable--

Unidentified Justice: Regrettable, it's incomprehensible.

Mr. Forrester: --litigation error.

Unidentified Justice: Why doesn't the... Ort, which you say he's the magistrate on page 89 and 90, supports your position.

Interestingly enough, that case is cited by the Government in support of its position, and I suppose the reason is because they make very clear in that case that it was unusual to deprive a person of water, and in that circumstance, absolutely necessary, and so how, in this circumstance, was it necessary to do what he says they did?

I was deprived of water, was teased by two officers when I asked for water, on one occasion they started to bring me water but ended up giving it to some dogs, I was given some once or twice during 7 hours, but that was not enough, and at one point during the hottest part of the day I was left without water for at least 3 hours.

All right, so for a person reading the case of Ort, and then reading that, you would think that Ort actually supports the Government, not you, because... unless, of course, there's some reason that behavior like that, if it occurred, would have been necessary, so what is the necessity, or what can you say about it?

Mr. Forrester: Well, I would hasten to add, Your Honor, those allegations that you keep reading again are not alleged against our three respondents.

Unidentified Justice: That's, of course, what you say, but what the allegation says is that it was your three respondents.

In... on... in the affidavit what he says specifically on that is, he says, I believe that the officer who actually put me on the hitching post was defendant Sergeant Mark Pelzer.

However, a report says I was put there by defendant Gates, and an officer named Mark Dempsey, and then McClaran wrote the report, and in McClaran's reply he suggests he was there, and so I don't see any denial here by your particular clients that they were not responsible for this, and he alleges they were.

Would that be your burden?

Is that their burden to say, I was not responsible, or is it the plaintiff's burden to say, you were responsible for not giving me water?

That's not there.

The language I read was the plaintiff's affidavit saying they were responsible in his opinion.

Responsible for putting him onto the post.

Mr. Forrester: We do believe it was the plaintiff's burden, Justice Breyer.

The excerpt you just read actually refers to the first day he was on the bar, May 11.

The second day was not when Pelzer put him on the bar, but it is no way clear from that that either Pelzer or Gates, who it would appear put him on the bar, stuck around after that.

Unidentified Justice: It's an important point for me.

I still don't understand why coercion to comply with an order by a restraint is not a punishment.

Mr. Forrester: We do think it's punishment in a broad sense.

That's trying to make too fine a point.

The point I'm trying to respond to is their contention basically that there was no valid penalogical purpose for putting him on the restraining bar, that this was somehow arbitrary or retaliative, or retributive and not remedial, which was the purpose.

The purpose here was to get him to go back to work.

It wasn't--

Unidentified Justice: But he says, and we must take this as true I think at this stage, I have no reason to say I'm willing to go back to work because I never for a moment said I wouldn't work.

They took me away from the work site.

In one case I was having a fight with somebody, but in neither case did I say, I won't work.

This was not a man who said, I want to be back in my cell watching the television and not working.

Mr. Forrester: --Yes, Your Honor, but getting into the altercation, actually getting to the point where he had his blade raised and was ready to strike another inmate, is certainly disruptive to the work squad, and that's a serious security issue for these--

Unidentified Justice: Thank you, Mr. Forrester.

Mr. Schaerr, We'll hear from you.

ORAL ARGUMENT OF GENE C. SCHAERR ON BEHALF OF MISSOURI, ET AL., AS AMICI CURIAE, SUPPORTING THE RESPONDENTS

Mr. Schaerr: Mr. Chief Justice, and may it please the Court:

We believe this case is controlled by any of three common sense principles of law, each of which is essential if this Court's qualified immunity doctrine is to prevent the problems that it was designed to prevent.

The first is that where personal liability is at stake, public officials shouldn't be expected to be more adept at construing case law than the State court judges whose decisions are reviewed in Federal habeas proceedings.

Now, the United States appears to adopt a standard that would be equivalent functionally to the standard that this Court has already adopted in the habeas context, and we think the United States' argument in this point is correct, and in fact we believe the Court has already come close to adopting that standard in the Saucier decision, which said the proper inquiry is whether the case on which a plaintiff relies occurred, and I quote, under facts not distinguishable in a fair way from the facts presented in the case at hand.

It seems to me that is just another way of saying that the facts of the two cases can't be materially indistinguishable.

Unidentified Justice: Well, let me ask you a different question, though.

What's the conceptual difference between materially similar, which was used here, and fundamentally similar, which was disapproved in Lanier?

Mr. Schaerr: Well, as I understand, the fundamentally similar requirement required a much tighter fit between the facts of the two cases than the materially similar standard does, and I think--

Unidentified Justice: I mean, maybe you're right, but I don't know that from looking at the two words.

I mean, it sounds to me as though materially and fundamentally are substantially similar.

[Laughter]

I mean, I--

Mr. Schaerr: --And not materially... you got it.

Unidentified Justice: --But it's splitting it pretty fine, it seems to me, and wouldn't it be better, wouldn't it serve clarity better if we in effect said in this case, look, stop paraphrasing the standard, and just stick to the basic standard, and that is, would it be clear to a reasonable officer?

Mr. Schaerr: Well, it seems to me, Justice Souter, the way you answer that question is, you look at the case law, and that's what at issue here.

There's no allegation that the text of the Eighth Amendment or that any statute bars the conduct at issue here.

Unidentified Justice: So you're saying regardless of how they paraphrased it, when you get down to the district court cases, on any standard, they ought to win.

That's it.

You're not resting anything on materially similar as the right way to describe it.

Mr. Schaerr: Well, I think it is important and useful for this Court to make the link to the habeas context, because I think that would provide greater clarity in the law, and the ultimate standard under this Court's decisions is whether official action violated clearly established law.

Well, that's the exact... that's exactly the same phrase that's used in the habeas statute, and that this Court has interpreted in Williams and Penry II as meaning materially indistinguishable, and it would be useful, and I think quite productive to apply that in this context as well, and would bring greater clarity to the law.

Unidentified Justice: But isn't that... isn't it a concern for the State court, because here we're talking about an officer, and did he follow what was an Eleventh Circuit decision.

Mr. Schaerr: Right.

Unidentified Justice: There, we're talking about a Federal court overriding a determination by a State court, so I don't think the settings are similar.

There's a particular concern that the habeas statute reflects, and that is not overriding a State court's determination.

Mr. Schaerr: Sure, but... and I agree the two situations are not entirely identical, but if anything it seems to me the section 1983 context raises even greater federalism concerns, because as this Court recognized a couple of terms ago in Geyer v. Honda, litigation can often be the functional equivalent of a statutory... of a statute or a regulation, and so what happens in the 1983 context, as illustrated in this case, is that courts articulate broad rules that purport to govern the conduct, the day-to-day conduct of elected and nonelected State officials, and so it seems to me if anything the federalism concerns are greater.

In another important way, public officials, nonlawyer, nonjudge public officials are at a disadvantage and that, as this Court noted in Saucier, and I quote, public officials are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving, unlike judges, who can take all the time they want sometimes to--

Unidentified Justice: Yes, but wait a minute, this is not split-second.

We're talking 7 hours here.

Mr. Schaerr: --I agree with that, Justice O'Connor, but the standard, it seems to me, needs to apply to the full range of official action that would be covered by 1983.

Unidentified Justice: Yes, but you have to ask whether a reasonable officer in these circumstances would have known that what was done was unconstitutional.

Mr. Schaerr: I think that ultimately is the answer, and it seems to me the way you answer that is asking the question posed in Saucier, of whether the two cases are materially... well, are... whether there's a fair distinction between the two cases, which seems to me amounts to material distinction.

Unidentified Justice: If you're requested to advise the correctional officers in your State as to the standard, the constitutional standard they must observe with reference to restraining inmates, and circumstances like these, what is the standard that you tell them they must follow?

Mr. Schaerr: Well, I don't think that's clear from this Court's decisions at this point, as the United States--

Unidentified Justice: Well, they come to you, and you're their attorney, and you have to figure out what we mean up here.

Mr. Schaerr: --Well, at--

[Laughter]

At worst... at worst I would tell them they have to follow the standard in Farmer.

That is, their actions can't be objectively cruel, but they also... they also cannot act with a subjective awareness of a serious harm to the inmates, and it seems to me that's the key distinction in this case between Gates, or the key reason why Gates is not controlling here.

Gates was decided long before Whitley and Farmer and all of those decisions that made clear the subjective requirement in the Eighth Amendment, and indeed if you look at the Eleventh Circuit's opinion, there's not even a finding of any awareness of serious harm that would come to these inmates.

They just completely overlooked the serious harm requirement, and so it seems to me Gates, based on this court's current cases, Gates is easily distinguishable, and can't be taken as controlling here.

Now, the second principle that I'd like to address is the principle--

Unidentified Justice: Well, I don't see in Gates... and I'm reading from page 1306, where they talk about being put in awkward positions, though.

Mr. Schaerr: --Right.

Unidentified Justice: I don't see any requirement of serious harm to the inmates.

Mr. Schaerr: Well, that's right, and that's why it seems to me Gates had been overtaken by this Court's subsequent decisions and therefore was not... was no longer binding, even if you take it on the terms that the petitioner was--

Unidentified Justice: What decision--

--Yes, what--

--of this Court do you rely on as changing what Gates said?

Mr. Schaerr: --Well, Farmer added a new requirement.

Well, not just Farmer, but Farmer and the other decisions that preceded it added a requirement of subjective awareness of a risk of serious harm.

Gates didn't impose that kind of requirement at all, and therefore once this Court's decisions made clear that that subjective requirement was present, Gates, it seems to me, could no longer be regarded as controlling in this situation, even if you interpret Gates on its own terms, as the petitioner would have you.

Unidentified Justice: Well, even if that were a requirement, you think the allegations here don't suffice?

Mr. Schaerr: No, I don't.

At worst, the--

Unidentified Justice: That one would not... a reasonable person would not be aware that you couldn't restrain someone on a post or rail for 7 hours in the heat, without water more than every 3 hours?

Mr. Schaerr: --Well, I think the question is whether the harm that you could foresee from that... and the record does not suggest that he was without water.

He says that he received water only once or twice during that 7-hour period.

Lots of people go without water and food for 24 hours.

Unidentified Justice: Yes, but also no bathroom breaks.

Mr. Schaerr: I'm sorry.

Unidentified Justice: Also no bathroom breaks for 7 hours.

Mr. Schaerr: There's no allegation of that in his affidavit.

Unidentified Justice: Well, the court of appeals said there was.

Mr. Schaerr: The court of appeals made a mistake, and this Court has the ability to review the summary judgment record de novo, and it's not a long record.

But that leads me to the... to my second principle, and that is that a public official shouldn't be held liable under section 1983, or shouldn't be stripped of his or her qualified immunity except on the basis of his or her own actions based on reasonable inferences from the summary judgment record, and it seems to me that principle is well-illustrated in the Saucier decision that this Court decided last term.

Indeed, as Justice Ginsburg recognized in her concurrence in that case, the evidentiary predicate for denying qualified immunity must consist of what Rule 56(e) calls specific facts set forth in affidavits or other similar evidence.

General allegations are not enough, in the summary judgment context, even though they might be on a motion to dismiss.

Unidentified Justice: Can I just ask you a specific point--

Mr. Schaerr: Yes.

Unidentified Justice: --because he's right about... my thing about the defendants was not June 7, it was, he alleges it.

Is there any place in the record where it's denied that these are the right defendants?

Mr. Schaerr: With respect to some of the activity, yes.

I couldn't give you the pages as I sit here, but the burden is on the plaintiff to make that record.

Unidentified Justice: Thank you, Mr. Schaerr.

Mr. Jones, you have 3 minutes left.

Mr. Jones: Thank you, Mr. Chief Justice, and may it please the Court:

If the Court has no questions, we submit that the judgment of the court of appeals should be reversed.

Chief Justice Rehnquist: Very well.

Thank you, Mr. Jones.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Atkins v. Virginia - Oral Argument

Fri, 09 Jan 2009 14:50:24 +0000

Case:

Atkins v. Virginia

Media File:

00-8452_20020220-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JAMES W. ELLIS ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument next in No. 00-8452, Daryl Renard Atkins v. Virginia.

Mr. Ellis.

Mr. Ellis: Mr. Chief Justice, and may it please the Court:

In 1989, this Court, surveying the already growing evidence from a variety of sources that the people of this country oppose the execution of individuals with mental retardation, observed that that growing sentiment might some day be manifested in legislation, particularly by the States, which this Court identified as the sort of evidence upon which it typically can rely in Eighth Amendment cases.

The evidence is now clear that the American people in every region of the country have reached a consensus on that question.

By every measurement and through a course of legislative enactments that is literally unprecedented in the field of capital punishment--

Unidentified Justice: What is your definition of a consensus, Mr. Ellis?

Mr. Ellis: --Mr. Chief Justice, the... I would define consensus... and this Court had discussed it in various terms in the cases, but I would distill from the cases in which the Court has described it that it is when the American people have reached a settled judgment based on a--

Unidentified Justice: Yes, but I... that's... that's a perfectly sound phrase, but how do we go about figuring out when that occurs?

I mean, how many States must be on a particular side?

Does the population make any difference?

How about those factors?

Mr. Ellis: --Your Honor, there... there has never been a suggestion by this Court that it differentiates among States with regard to size, and yet obviously logically if... if a... an... if a collection of statutes only was found in the smallest of the States or the States of a single particular region, it would cut against the evidence that there was a consensus.

Unidentified Justice: And... and how many States out of the 50 do you need, do you think, for... for a consensus?

Mr. Ellis: This Court has never suggested that there's a particular number in response to that.

And when you look at the cases, both that have found a consensus and that have not, they vary.

Unidentified Justice: Well, but you're saying there is a consensus.

So, you must have some figure that you're submitting to us.

Mr. Ellis: I'm... I'm not submitting on the basis of a figure, Your Honor.

I'm suggesting that read in their entirety, the Court's cases talking about consensus seem closer to us to be a... a totality of the evidence test but with the requirement that that evidence across the board have found expression unambiguously in statutes.

Unidentified Justice: Should we not look at legislative enactments as the surest indicator of what the view of the... the particular State is?

Mr. Ellis: Yes, Your Honor, I think that you should, and I took that to be the... the teaching of this Court's opinion in the first Penry case.

Unidentified Justice: And looking at that, where do we stand today?

We have... how many States have no death penalty at all?

Is it 12?

Mr. Ellis: It's roughly 12.

Unidentified Justice: Yes.

Mr. Ellis: It in part depends on how Vermont is counted, but... but it--

Unidentified Justice: And how many States have now enacted legislation providing that a retarded person may not suffer the death penalty?

Mr. Ellis: --There are now 18 States as compared to the 2 that... that were on the books or were about to go on the books, in the case of Maryland, when this Court decided the Penry case.

Unidentified Justice: Of course, not... not all of those 18 feel so strongly that it is unconstitutional to execute someone with reduced mental capacity that they are willing to apply that to people who've already been sentenced.

How many of those 18 States have adopted that law only prospectively?

Mr. Ellis: A number of them.

Again, there's a categorization--

Unidentified Justice: I think there's quite a few.

Mr. Ellis: --We don't have a precise number.

Unidentified Justice: And that doesn't... that doesn't bespeak such a... such a intransigent view that this is unconstitutional.

I mean, you say, well, you know, we won't do it in the future, but this person has already been tried and convicted, you know, go ahead.

Does that suggest to you that... that I think it's really unconstitutional or just that I think it's a good idea in the future not to do it?

Mr. Ellis: I guess I would characterize, Justice Scalia, the statutes not as having concluded that the practice was unconstitutional, but instead that it was unacceptable.

But that still leaves your point.

Unidentified Justice: Well, no, it doesn't.

It just says it's not desirable.

That's all the statute suggests, it seems to me.

And I... I thought when you were talking about a consensus, you're talking about a consensus that something is so... so terrible that it should not be permitted.

And these States are permitting it.

They're just not going to do it in the future.

Mr. Ellis: I... I would respectfully suggest that they have not reached that judgment.

In the bulk of the States that have prospective only language, that is to say, some kind of bar... and it varies among the statutes to looking backward to cases already decided.

In the bulk of those cases, it was clear that there was no one with mental retardation currently under sentence of death in that State.

And so, passing a statute that would encompass people on death row in that State would have been unnecessary in the view of legislators and might have--

Unidentified Justice: How do we know that?

How do we know that?

Mr. Ellis: --The... the discussion in the... in State legislatures, there isn't legislative history in quite the way there is in Congress.

Unidentified Justice: Pity.

[Laughter]

Mr. Ellis: I was going to say this must be a source of substantial disappointment.

[Laughter]

But... but what... what evidence we have comes from recordings of the debates and, in particular, journalistic accounts from... from those debates.

It... it is clear from those that the... that the concern of treating differently people who have been sentenced to death previously and those who would face a capital trial prospectively was not a principal concern.

And I'm trying to come up with a State in which it was known that there was someone who had mental retardation on death row.

The only State in which I might have reached that conclusion, there had already been a judgment by another court that the individual involved... it was in Arkansas... didn't have mental retardation.

Unidentified Justice: Mr. Ellis, would you... would you agree... you know, I'm not... assuming I agree that... that when there is a... a new consensus that the Constitution means something it didn't mean before the Constitution means that new thing, assuming I agree with that, you... you must agree that... that we have to be very careful about finding new consensuses, don't you?

Because we can't go back.

I mean, if we find a consensus here that it is indeed unconstitutional to execute the mentally retarded and then it turns out that there are a lot of problems, that indeed in every case, every capital case, there's going to be a claim of mental retardation and people come to believe that in many of these cases you get expert witnesses... you can easily get them on... on both sides... people become dissatisfied with that.

We won't be able to go back, will we?

Because the evidence of the consensus is supposed to be legislation, and once we've decided that you cannot legislate the execution of the mentally retarded, there can't be any legislation that enables us to go back.

So, we better be very careful about the national consensus before we come to such a judgment, don't you think?

Mr. Ellis: I would agree with you, Justice Scalia, that as the Court has said in various ways in several of the cases that the... that the proponents of the view that there is a consensus bear an extraordinarily heavy burden of demonstration.

But the particular concerns that you raise about the possibility that sentiment might especially in the... in the presence of experience enacting a statute swing the other way, while theoretically possible, is not borne out by the experience in the 18 States, but in particular in the States that enacted some years ago.

Unidentified Justice: Well, but Justice Scalia's basic premise that it's a one-way ratchet is correct.

Is it not?

Mr. Ellis: This Court has not had... had occasion to address that in particular.

The closest, I suppose, that it has come is the Court confronting the ambiguity with regard to the execution of individuals below the age of 16 and... and the presumption that the Court reached in the face of that ambiguity.

Unidentified Justice: Well, Mr. Ellis, logically it has to be a one-way ratchet.

Logically it has to be because a consensus cannot be manifested.

States cannot constitutionally pass any laws allowing the execution of the mentally retarded once... once we agree with you that it's unconstitutional.

That is the end of it.

We will never be able to go back because there will never be any legislation that can reflect a changed consensus.

Of course, isn't it true that every new constitutional holding is a one-way ratchet in exactly the same way?

Mr. Ellis: Not only in the area of the Eighth Amendment but in others as well.

We could all imagine ways in which dissatisfaction with the ruling might manifest itself--

Unidentified Justice: Mr. Ellis--

Mr. Ellis: --Yes.

Unidentified Justice: --I guess there's no uniform determination of when someone should be regarded as mentally retarded.

The standards probably vary somewhat from State to State, do they not?

Mr. Ellis: Justice O'Connor, they vary remarkably little.

The definitions are not framed in exactly identical forms because often States have adopted the definition that they employ for disability benefits purposes or guardianship purposes or commitment.

Unidentified Justice: I guess my point is even if this Court were to say that it's unconstitutional to execute a person who's mentally retarded, presumably it would still be open to the State to determine whether that individual is mentally retarded under the State's definition, or is there some Federal definition you're asking us to employ?

Mr. Ellis: It seems to me that the States would be free to define mental retardation... and, as I say, many use the definition they already have, that their clinicians are accustomed to... so long as the definition they chose carried with it the core principles of the definition of mental retardation that this Court discussed in Penry, that is to say, a measured intelligence in the bottom 2 percent... in the bottom 2-and-a-half percent of the population or 2 standard deviations below the mean, plus an impact on the real world functioning of the individual and as--

Unidentified Justice: Well, this... this actually links up to the consensus problem if you take... I don't think a poll is relevant, but assuming you took a poll and since you execute the retarded, I think most people would have in... in mind an image of mental retardation which doesn't reflect the sophistication of the DSM which talks about mild retardation and defines somebody who's mildly retarded as educable with an IQ of maybe as high as... in that range of... of 70 with... with some... with some room for statistical error.

Do the States have some leeway in defining retardation that's any different than what's in the DSM?

Mr. Ellis: --With regard to... with regard to details, as I suggested a moment ago, there... there is room for some difference, but with regard to the core principles, which I take to be at the center of... of your question, are we describing the same group of people--

Unidentified Justice: Yes.

Mr. Ellis: --what we've discovered in the States is that they've all come to essentially the same conclusion, which is all the people who fall within the AAMR or DSM-IV-TR definition are the people that they chose to protect.

And going to your earlier point about what people know about the level of functioning of individuals with mental retardation... yes, Your Honor... there... other than parents... parents I'd put aside... there is, I think, no group in this country more aware of the variety among people with mental retardation and the levels of functioning at each level than State legislators.

Unidentified Justice: This... this goes to the... where is the burden of proof in a case like... supposing your view is adopted, the State charges capital murder.

Is the burden of proof on the defendant to show that he's retarded?

Mr. Ellis: Yes, Your Honor.

Every State that has enacted a statute has placed the burden on the defendant, although they have done it in somewhat different ways.

Unidentified Justice: Mr. Ellis, what about this very case?

There was some confusion, but the Virginia Supreme Court seemed to doubt that this person would qualify as mentally retarded.

If... if you would prevail, wouldn't there have to be a remand on that question?

Mr. Ellis: Obviously, in our... we would not be totally disappointed if this Court were to resolve that question, but the... the likelihood and prospect of a remand obviously would be an appropriate response so that the Virginia courts who did not, in this case, have before them mental retardation as a legal question that was going to decide anything... it was simply an observation in the course of making--

Unidentified Justice: Well, what precisely did the Virginia Supreme Court say about this defendant and--

Mr. Ellis: --I... I think maybe the... the Virginia Supreme Court's decision on that can be best characterized as expressing concern as to whether or not the individual... in this case Mr. Atkins... had mental retardation because of the testimony of Dr. Samenow that... that suggested that there had not been a full demonstration of the impact of his impairment in his life, the second prong of the definition--

Unidentified Justice: --Can you tell me--

--Mr. Ellis, apart from the consensus argument and these details, what is the real reason behind your position?

What's wrong with executing the mentally retarded?

Mr. Ellis: --In our view, Your Honor, the people with mental retardation who have both that intellectual functioning as the core and it has manifested itself in their life throughout their life... those individuals in our view lack the culpability or blame worthiness because their understanding of their actions, their understanding of the context in which their actions took place--

Unidentified Justice: Well, why are they subject to criminal liability at all then?

Mr. Ellis: --They are subject to criminal liability because it isn't our contention that they, for example, can't tell... to use the... the language in... in Virginia's defense of insanity, that they can't tell right from wrong.

What we're suggesting... so, we're not suggesting they can't be punished.

What... what we're... what we are contending is that, though they can be punished, the death penalty is different, and it is reserved for those whose understanding is sufficiently clear that the penalty of death can be appropriate.

Unidentified Justice: So, nothing wrong with putting a retarded person... we know that there's a problem with definition, but... in... in jail for life, solitary.

He can exercise in a cage.

Mr. Ellis: Nothing in the ruling that we seek here would preclude the State from imposing the most serious penalty it has other than the penalty of death.

Most States do.

A number of the States that have passed statutes have explicitly provided in those statutes that an individual exempted from the death penalty by the statute will be subjected to... and then it explicitly says, in some cases, life imprisonment without possibility of parole, or whatever the heaviest penalty.

Unidentified Justice: Should the test be the same as for executing someone with a mental illness?

We... we have dealt with that, and... and with the level of comprehension that someone must have in order to be eligible for the death penalty who has mental illness.

Should the test be the same?

Mr. Ellis: Your Honor, I believe you're discussing the Ford issue with regard to competence to be executed?

I read the Ford case as suggesting that whether the individual had mental illness or mental retardation, if... if that individual lacked the understanding as execution became imminent, that they... that the State would be precluded from executing.

This--

Unidentified Justice: So, is that test not adequate here in your view?

Mr. Ellis: --That test, it seems to me, is not adequate for several reasons.

One is that the Ford holding focuses on a defendant and... and his mental state late in the process, as... as execution is impending.

The mental retardation question, as addressed by the States in... in the years since Penry, focuses on the individual's mental functioning at the time of the crime.

Unidentified Justice: What... what about our... what about our mental illness cases dealing with the time of the crime?

Why aren't they sufficient to indeed excuse somebody who couldn't help themselves?

You're saying these people can help themselves.

They did know the difference from right to wrong, but what?

They're... they're slower than others and therefore shouldn't be executed.

Mr. Ellis: Yes.

Their... that their understanding was, of necessity, limited by their mental functioning.

Unidentified Justice: Their understanding... I mean, they have to have known that what they were doing is wrong.

Mr. Ellis: In order to be convicted in any of these States, yes.

Unidentified Justice: So, isn't that the only thing that bears upon culpability?

Mr. Ellis: It seems to me, Your Honor, that it is not because... because under our system of capital punishment, as it has been shaped by the decisions by this Court, we don't say that the death penalty is available for everyone who can be punished.

The Court, through a variety of mechanisms, including the mitigation system, has said that among those who can be punished, some can be punished by death and others not.

In a number of those cases, this Court has reached categorical rules, which is what we seek here.

Unidentified Justice: Yes, but... but those rules were based upon the fact that some people are not as culpable.

Their crime was not as heinous and so forth.

You have to narrow the category to those people who are really morally reprehensible.

I do not see the necessary connection between... between intelligence and moral reprehensibility unless you truly think that... I guess the... I guess the result of your argument is that there... that there is more crime among... among the mentally retarded because they don't really understand the consequences of what they're doing.

Is that a demonstrable proposition?

I don't think it is.

Mr. Ellis: It is not, and I think it's untrue.

Unidentified Justice: Yes, I think it's totally untrue.

So, I don't--

Mr. Ellis: So, what we're saying in... in response to... to your question, what we are saying is that a person who commits an act... who has mental retardation, who commits an act which is subject to punishment, does so within the scope of the limitations imposed by his disability.

And that may allow him to form a criminal intent sufficient to satisfy the criminal law for punishment in general, but in our view and now the view of... of the people of the States manifested in these statutes and of the people manifested in the Congress, those individuals who can be punished, as individuals under the age of 16 can be punished, cannot be punished by the penalty of death because, as this Court frequently reminds, death is different, a different calculus, a different set of concern.

The judgment by the people as expressed in their legislatures has been these are individuals for whom we do not want the death penalty used.

It's not--

Unidentified Justice: --And what is... what is the reason?

I mean, you... you... in responding to Justice Scalia's question, you... you point out, well, these people pass the... the test of... of comprehension, which is a condition of culpability for execution.

What test don't they pass?

What is the reason for this emerging consensus?

Mr. Ellis: --The principal reason... and... and it has changed a little bit as... as the... as the process has gone on.

The original and continuing principal reason is that people, as expressed through the legislature, have reached a judgment that someone whose intellect is at this level and who has grown up with that limitation on their ability to learn... because age of onset is part of the definition of mental retardation as well... are not individuals for whom death is an appropriate punishment.

Unidentified Justice: No.

I realize that that's the judgment they're reaching, and you want us to recognize that judgment as now having constitutional significance.

What I want to know is why are they reaching that judgment?

What is the reason that elevates that judgment to one of constitutional significance?

I guess the... the converse of my question is we're not here simply to add up numbers and say, oh, when it gets to 37, the result is different.

You're... you're asking us to make a different kind of... of... draw a different kind of conclusion.

And what I want to know is what is it behind the judgment of these emerging States as a reason that should recommend itself to us?

Mr. Ellis: And... and as I said, the principal focus is on the understanding of people of what the limitations imposed on people with mental retardation are and how it affects their comprehension--

Unidentified Justice: They know it's wrong but they don't appreciate how wrong it is?

Mr. Ellis: --Yes.

Unidentified Justice: I mean, is that the idea?

Mr. Ellis: It is... it is that their understanding of the wrongness of their action may be incomplete and in a sense immature in the same way or in a parallel way at least--

Unidentified Justice: Mr. Ellis, I thought that you had said something different in your brief, and it was that people in this class have diminished capacity when it comes to the life or death decision.

I thought you said that they will be smiling in the... and the jury will say, well, how inappropriate.

They're not expressing any remorse.

That they will not be able to communicate as effectively with their... their counsel.

That it's... that it's the image of this person when the life/death decision is made that they give false clues to the trier, to the jury, and that will disable counsel from representing such a person on that life/death decision.

You haven't said anything like that in your oral argument.

Mr. Ellis: --And... and that was the point I was adverting... was adverting to a moment ago, that the principal reason is, as I've suggested, the shared understanding of the diminished culpability of people with mental retardation.

But increasingly, especially in the last 3 or 4 years, there has been a second and secondary reason for enactment of the statutes which is a growing concern that individuals with mental retardation facing capital charges present a particularly and uncomfortably large possibility of wrongful conviction and thus wrongful execution.

The... the cases in both Virginia and in Illinois over the last few years have made what I acknowledge is a secondary argument but one which comes up in legislative discussions with increasing frequency, that... that in just the way you were describing, that the process of adjudicating in a capital case someone who has mental retardation and who's understanding that... is that limited may, through a variety of mechanisms, increase the likelihood of wrongful conviction and thus unjust execution.

Unidentified Justice: Counsel is not able to bring that to the jury's attention--

Mr. Ellis: Counsel--

Unidentified Justice: --and say, ladies and gentlemen of the jury... in fact, he can bring mental retardation to the attention of the jury as a basis for the... for the jury's deciding not to execute the person, can he not?

Mr. Ellis: --He clearly can.

Unidentified Justice: There's no question that in all States he can do that.

Mr. Ellis: That's right.

Unidentified Justice: So, you're saying the jury is not constitutionally even allowed to... to be given the option.

And counsel can say to the jury, during this trial, you... you may see my client smiling inappropriate at some points.

You should know that this is... this is because he's mentally retarded.

He really doesn't fully comprehend what is going on here and I ask you not to take his... his reactions into account.

It seems to me that would just reaffirm the... the more he'd smile, the more a... the jury would say, boy, this... this person really shouldn't be executed.

He's not playing with a full deck, or whatever.

Mr. Ellis: There may well be cases in which that would be effective in guarding against that concern, but that also backs into the problem this Court observed in Penry, which is in a case-by-case determination, particularly in cases in which juries are making the decision, the mental retardation may in fact be a two-edged sword, that the... that the juror, in evaluating whether or not to impose the penalty of death, may see mental retardation not only as a mitigating or potentially mitigating factor, but it may also see it as tied to prospective dangerousness.

That issue is... is present everywhere it seems to me.

It is particularly present in--

Unidentified Justice: Isn't it present in all cases of mental illness as well?

Mr. Ellis: --Is... is the difficulty of case-by-case?

Yes.

It--

Unidentified Justice: Your arguments seem to be equally applicable to those who are mentally ill.

It's a two-edged sword in effect.

Mr. Ellis: --It is but unlike mental... in the case of the mental illness, unlike mental retardation, there has not been a manifestation of a national consensus, either in legislation or elsewhere, that suggests the American people have rejected the notion.

Unidentified Justice: But the reasons you put forward to us seem to me remarkably the same.

Mr. Ellis: The... the reasons that I've offered--

Unidentified Justice: Am I right?

Mr. Ellis: --would apply to other defendants who don't have mental retardation.

Unidentified Justice: Right.

Mr. Ellis: But... but they are not so closely tied to the defining characteristics of a class as they are here to have produced that consensus.

Unidentified Justice: All right.

So, come back and tell us how we know when there's a consensus.

Mr. Ellis: Your Honor, it seems to me that I read this Court's cases as saying that they will... that the Court will look to... that in prospective cases you will look to a variety of forms of evidence, but that any proffer of evidence of a consensus which does not have substantial and in one case a discussion of recent formulation of that consensus into enactments by the legislature will be viewed with skepticism or impact--

Unidentified Justice: How many States still allow the execution of retarded?

Mr. Ellis: --Theoretically there... there could be 20.

There... there--

Unidentified Justice: In how many of those States have there been executions of retarded people since Penry the last 20 years?

I count two.

Mr. Ellis: --We... we cannot be sure but it is roughly two or three, yes.

Unidentified Justice: So, you... you have less... less than half of the States that have capital punishment make an exception for the mentally retarded, and you say that that constitutes a consensus.

Less than half.

Mr. Ellis: Not by itself.

Unidentified Justice: I can see the argument that there's a consensus on the other side since the other side seems to be in the majority, but you say less than half represents a consensus.

Mr. Ellis: I'm not sure that... that we could conclude, for example, that people in the States that don't have the death penalty approve its imposition or if they adopted a death penalty would include within the scope of this--

Unidentified Justice: But we're looking to legislation, and... and we--

--But you're saying 48 constituted a consensus.

Mr. Ellis: --Well, that... that is another way of counting.

And I don't... I don't want to slip into what an amicus on the other side referred to as the counting of noses.

This is a serious business, as this Court has recognized, and the fact that the Court has not treated large States differently from small suggests that the Court is looking at these enactments not only to count up the jurisdictions that have adopted it, but also to see whether the process by which they have been enacted is revealing of a settled moral judgment, in this case a moral judgment of revulsion--

Unidentified Justice: Settled.

But we also said in Penry that... you know, the argument was made to us that there was an emerging consensus, and we rejected that.

We said an emerging consensus is not enough.

There has to be a consensus.

Mr. Ellis: --And our position, on the basis of what has happened in the 13 years since Penry, is that the consensus that was then emerging is now manifest, both in the legislation and in every other indicator we have of public sentiment.

I'll reserve--

Unidentified Justice: You're not talking about polls if you're talking about public sentiment, are you?

Mr. Ellis: --It seems to me, Your Honor, that... that the polling information, which was quite scanty then and is now quite full, as suggested in the AAMR amicus brief in McCarver, is part of the picture.

Unidentified Justice: Well, wouldn't you expect if people feel that way, it would... it would be manifested in legislation?

Mr. Ellis: And increasingly it is.

Unidentified Justice: Yes, but are you saying that somehow polls are to be considered in addition to legislation?

Mr. Ellis: Polls, it seems to me, Your Honor are a way of... of viewing the legislation, of seeing whether or not the consensus the legislation appears to reveal is in fact--

Unidentified Justice: And I take it polls should be admitted in... if we're going to talk about polls as contributing to this discussion, they should be admitted in the trial court and subject to examination by the other side.

Are any... have any of yours done that?

Mr. Ellis: --I... I don't believe... I... I'm trying to think of a case in which polling has played a part in the trial court, and... and I believe it has... none comes to mind.

None comes to mind.

I'd like to reserve the rest of my time.

Unidentified Justice: Very well.

Ms. Rumpz.

Am I pronouncing your name correctly?

ORAL ARGUMENT OF PAMELA A. RUMPZ ON BEHALF OF THE RESPONDENT

Mr. Rumpz: Yes.

Thank you, Mr. Chief Justice, and may it please the Court:

What is at stake here is this Court's long-established jurisprudence of individualized sentencing in matters of the death penalty.

Penry would have... not Penry.

I'm sorry.

Atkins would have this Court removed from individualized sentencing one whole group of people based upon one mere factor, and that is their alleged mental retardation.

Unidentified Justice: Well, the position of the Commonwealth of Virginia is that you can execute the retarded.

Is that correct?

Mr. Rumpz: Yes, the retarded individuals who, like Atkins, were found competent at the time of the crime, competent at the time of... to assist his lawyers, who were found guilty of a premeditated, deliberated, and calculated murder, and who--

Unidentified Justice: So, any person who has criminal responsibility can be executed no matter how retarded they are.

That's your position.

Mr. Rumpz: --That is the position of the Commonwealth of Virginia, yes.

And they... of course, the jury has to be instructed, in... in keeping with Penry I, about the mitigating value of the defendant's mental retardation.

Unidentified Justice: You... you would not say no matter how retarded.

I mean, presumably there's some point at which the retardation is so severe that the person does not comprehend what he's doing.

Mr. Rumpz: Exactly, Your Honor, but if--

Unidentified Justice: But short of that, you're saying--

Mr. Rumpz: --But short of that, exactly.

But the--

Unidentified Justice: --Then--

Mr. Rumpz: --the DSM-TR... IV-TR recognizes four different categories of mental retardation.

As this Court noted in Penry, the profoundly or severely retarded are not likely to face the prospect of punishment, and they're not really who we're arguing about here today.

We're arguing--

Unidentified Justice: --Well, why don't we say the same thing then about... about children, about young people?

So long as the State can prove the premeditation, the deliberation, the... the other requirements of... of mental culpability, let them be executed.

Mr. Rumpz: --But this Court has said that about 16-year-olds in Stanford.

Unidentified Justice: Well, let's take 5-year-olds.

Would... would you argue that 5-year-olds should be executed if... if they have deliberated on... on the act and... and otherwise the State can prove the... the mental element?

Mr. Rumpz: I think that that's... that's unlikely to happen.

But if... if a person can deliberate and premeditate and if a person can commit a brutal, calculated, premeditated murder, and if a person is found competent at the time he commits that murder and competent to assist his lawyers at the time of the trial, then we're not looking at somebody whose culpability is in any way less than yours or mine.

Unidentified Justice: Do you believe there is... there is any role at all in... in the... in Eighth Amendment jurisprudence, death penalty jurisprudence I guess, for... for general rules to the effect that, yes, there may in some instances, let's say, of retardation be... be proof of... that would at least be enough to get to a jury on premeditation and... and deliberation and so on, but that the very fact of... of retardation makes it unlikely in most cases that this can be proven and makes the evidence at least highly debatable, even in those cases that get to a jury?

And therefore, the sensible thing to do in order to avoid a high risk either of wrong conviction or in the case of... of the penalty phase a high risk of... of unsound judgments imposing the death penalty, there ought to be a cutoff point of some sort.

There ought to be a cutoff of the high risk cases from the general rules of proof.

Do you... do you take the position that there is no place in... in death penalty jurisprudence for that kind of a... we'll say a high risk cutoff rule?

Mr. Rumpz: A high risk cutoff rule of?

I'm sorry.

I didn't follow exactly what you were saying.

Unidentified Justice: Well, I'm... I'm assuming that, sure, there are cases of borderline retardation and so on in which the... there would be enough evidence to get to a jury on the various mental elements for a... for a capital sentencing.

I'm also assuming that in cases of retardation, including retardation near the borderline, that that evidence is... is highly debatable in most cases, and it is sufficiently uncertain, it is sufficiently debatable that there's a high risk that a jury is going to come to the wrong conclusion.

It's going to say, oh, yes, this person really is the worst of the worst and sentence him in... in a case in which that really is not so.

And the reason for having a rule saying, we're going to have a... a retardation cutoff... a person who is retarded will be ineligible for the death penalty... is to avoid those high risk cases and avoid the risk, in effect, of wrong imposition of the death penalty.

That's why we would have such a rule, quite apart from moral judgments or anything else.

I'm just talking about this practical risk judgment.

And my question to you is, do you say that our death penalty jurisprudence should have no place for such a... a risk assessment rule?

Mr. Rumpz: That's what individualized sentencing is.

That is the risk assessment rule.

That's what juries--

Unidentified Justice: Well, it's... its very clear that within the category of those who ought to be subject to the death penalty, there should be individual assessment.

I'm asking whether you believe that in risky cases there ought to be rules to eliminate the risk.

And I take it your answer is yes, but I don't want to say that if... if I'm being unfair to... to your position here.

Mr. Rumpz: --You know, I don't want to play dumb here, Justice Souter, but I'm afraid I'm not understanding what... what you're asking me.

I think that the risk assessments that you're talking about play into the... the concepts of individualized sentencing under the Eighth Amendment.

The juries make those assessments.

The juries determine whether someone is sufficiently culpable for the death penalty and they determine whether his mental retardation is a mitigating factor sufficient to outweigh giving the... the defendant the death penalty.

Unidentified Justice: Let's assume, because I'd like to get the answer to Justice Souter's question myself... let's assume.

You may disagree with it.

Mr. Rumpz: Okay.

Unidentified Justice: Let's assume that there's a higher risk of inaccurate determinations by a jury, both for guilt and... and penalty, when the person is retarded.

Let's assume that.

You may disagree with that, but let's assume it.

Mr. Rumpz: Okay, I'll assume that.

Unidentified Justice: Justice... Justice Souter asked the question, if there is that risk, is there a place in our Eighth Amendment jurisprudence for us to take account of that risk and draw some lines?

Mr. Rumpz: No.

I... I think... if I understand what you're asking is... is... does the Eighth Amendment provide exemption from the death penalty to a class of persons who may be at a greater risk for an inappropriate death sentence?

I don't think the Eighth Amendment plays into... that's what the Eighth Amendment sets up individualized consideration and individualized sentencing for.

Unidentified Justice: Mr. Rumpz, I... it's a hard question to answer because I guess you... you would need a definition of what constitutes an inappropriate or improper death penalty, and we haven't... we haven't established any guidelines.

We have said you must leave it to the jury to take into account all mitigating factors.

Whatever the jury considers mitigating it may allow.

In such a scheme, I don't know... it is meaningless to talk about an inappropriate death... death sentence.

There are no criteria.

It's up to the jury.

Whatever the jury considers mitigating it may allow.

And--

Mr. Rumpz: Exactly.

Unidentified Justice: --I guess you're talking--

--There... there is not a proper or an improper death... death sentence.

I guess you're talking about a class of... you said this class of people... and I'm not sure you meant that... is no less culpable than you or me.

But I thought the class of people we're talking about is a class of people that might simply barely understand what's going on.

Barely.

So, they know right from wrong, but they can't understand anything complicated.

They have a hard time functioning.

Their emotions are no more different than yours nor mine, than anybody's.

So, they feel things strongly.

But they won't take in the nature of the punishment, in all likelihood, and they're quite capable of following the leader, whoever is the leader nearby.

And therefore, this class of people is different enough than you, than me, that we wouldn't say they are similarly culpable.

And I guess in 48 of the 50 States, people have reached that conclusion.

All right.

Now... now, that's I take this case.

And I say 48 because I want you to disagree with me so we can then explore that.

[Laughter]

But I thought that that was... I mean, there's an argument--

Mr. Rumpz: I'll be--

Unidentified Justice: --But I want you to address, A, I've tried to make a point maybe they are not so culpable as you or me.

And second, an awful lot of people in the United States seem to agree with that.

In fact, I... now, those are the two things I want you to address.

Mr. Rumpz: --Well, first of all, I think this case is a perfect illustration of the first point, the first point being that... that they are.

If you are found competent to stand trial and competent to assist your lawyers, you are like you and me.

Daryl Atkins had a perfect understanding of the system, knew all about mitigation evidence, recommended witnesses to testify in mitigation, was competent to assist his lawyers, said he wanted his retardation put in front of the jury if it helped him.

He had no deficits in understanding the system.

Moving on to the second point, 18 of the 38 death penalty States have formed or have enacted some sort... excuse me... some sort of laws prohibiting execution of the mentally retarded.

The Commonwealth's position, however, is that that 18 is... is not written in stone because many of the statutes don't provide for retroactive application.

So, you're looking--

Unidentified Justice: There was a time... there was a time--

--The... the question I have on that is you want to say less than 18.

Mr. Rumpz: --I... I sure do.

Unidentified Justice: I want to know why not far more than 18, and my reason for that is that in... of the remaining 20... there are two States that have executed retarded people, and they account, I gather, for about 7 percent of the population.

But in the remaining States that haven't passed this law yet, why would someone feel a need to pass it?

I noticed, which I copied here, that the Governor of Texas said, I am... I am going to veto this law because we do not execute mentally retarded murderers today.

Now... now, he might have been wrong about that in Texas.

I don't know.

But regardless, why would a State that never even has executions, but they have it on the books, feel constrained to pass a law?

Mr. Rumpz: Well, I... I think that... that the fact that 18 States have done so in the last 13 years... it doesn't mean that that--

Unidentified Justice: Presumably those States were executing a lot of retarded people, and that's why the laws were passed.

Mr. Rumpz: --Well, that's an equally good assumption.

Unidentified Justice: Well, I assume... an even simpler assumption is that they were executing people.

Let me ask you a kind of a... a specific example of Justice Breyer's question.

In... in your calculation, how do you account for the... for a State like the one that I come from that has not executed somebody in over 60 years?

Do you say, well, that's a State that apparently approves of executing the retarded?

Do you say that's a State that shouldn't be counted at all?

How do you account for that in your calculus?

Mr. Rumpz: I don't know what State you come from, first of all.

[Laughter]

Unidentified Justice: I'm from... I'm from New Hampshire, and the last execution was in '38 or '39.

Mr. Rumpz: I guess my answer to that is that this Court has said that societal consensuses are formed, and when you're looking to see whether there is a societal consensus, you look to the statutes that the... that the legislators have passed.

Unidentified Justice: But that's what we're asking about, and Justice Breyer's question, as well as Justice Souter's, is... I think must recognize the premise that one of the great facts of life in American Government is legislative inertia.

Legislatures don't act unless they're prompted to do so.

And a legislature is not going to just sit down and say, oh, I think it's a good time for us to pass a... a bill on... against executing the mentally retarded if there's no such person on death row.

Legislatures just don't operate that way.

Mr. Rumpz: Or there's no such person... person on death row who was not competent to... to commit his crime, was not competent at the time of his trial, was not competent to assist his lawyers.

There's a difference there.

Unidentified Justice: What... what do we know, Ms. Rumpz, about the situation in the States, the 18 States which have prohibited the execution of the retarded?

Had they just gone through a tremendous number of retarded executions?

Mr. Rumpz: I suspect not.

Unidentified Justice: Do we... is there any... anything in the briefs that indicates why these States passed the legislation that they did?

Mr. Rumpz: No, there's not.

And... and I can speculate that it's a pretty pro... anti-death penalty machine out there working, but--

Unidentified Justice: Justice Breyer says only two mentally retarded people have been executed in... in the last I don't know what.

So, that couldn't explain these 18 States.

So, maybe legislatures do enact laws because they think they're good laws to enact, and maybe that's why the 18 did it.

No, no.

I said two in... two, but it may be a few more.

That's what I'm not... in two States in those States that haven't enacted the laws.

Of course, the ones that have enacted the laws don't have the executions, and some of them did execute mentally retarded people before they passed the law.

Mr. Rumpz: --Well, the Federal Death Penalty Information Center, if you get on their web site, says that since Penry was decided in 1989, 25 mentally retarded--

Unidentified Justice: We've gone through those and... and tried bit by bit, and most of them are in these States and then some of them are... have IQ 's of 70 or over.

And I would say in that... they're... they're erring on the side of counting mentally retarded.

But if you draw the line at 70, look below it, you get to the numbers I had.

I'm looking to you for giving me the good numbers and... and the lawyers.

That's why I... I figured it out it was two States, but I'm not certain.

Mr. Rumpz: --I... I think just because two States in... in... since 1989 have executed mentally retarded offenders doesn't mean that there aren't mentally retarded offenders in the pipeline waiting to be... to become executed or waiting to go through their appellate process or... or coming up to trial.

You know and I know that this is a very slow process.

These cases drag on for years and years, decades.

And... and when you look to a number like that, you necessarily have to figure in all--

Unidentified Justice: Leave it at this, that since Penry... Penry.

There's no consensus.

Since Penry, 18 States have said by law, no.

And in the remaining States, we're pretty sure that two of them, accounting for about 7 percent of the population, have executed mentally retarded people and maybe double that if you want, triple it.

Say there are 14 percent, 20 percent.

Still, isn't that a consensus?

Why not?

Mr. Rumpz: --Well, I... I guess I'd go back to what Justice Scalia said in one of his opinions is that that may very well just be that juries and prosecutors and society believes that the death penalty ought to be imposed on the mentally retarded less often.

Unidentified Justice: Ms. Rumpz, if we stayed just with the 18 plus the 12 that don't have the death penalty, then we get up to what?

Mr. Rumpz: 30.

Unidentified Justice: Three-fifths of all the States.

We get enough to, for example, block a filibuster in the Senate.

That's a super majority.

Why isn't that... why doesn't that suffice?

Mr. Rumpz: For two reasons.

First of all, I don't think you can count 18 as 18 because in some of those States, you can execute the mentally retarded.

Unidentified Justice: Now, there was a time in this Court... it wasn't all that long ago... when this Court was making prospective declarations of unconstitutionality, this case and all future cases, not past cases.

Maybe the States that haven't made it retroactive haven't gotten up to speed on that once it's... once we make a declaration of unconstitutionality, it's retrospective.

Mr. Rumpz: Even given that, New York has in its statute specifically that people who commit murders, while in prison, can be executed even if they're mentally retarded.

So, you have to take New York from the list.

Mentally retarded offenders can be executed in New York.

Second of all, I don't think you can add the 12 non-death penalty States and... to... to a number of death penalty States to try to form a societal consensus.

Unidentified Justice: Why not?

Mr. Rumpz: Well, because they may have some bearing on whether there's a consensus against the death penalty altogether.

Unidentified Justice: Right, and it includes that.

I can't imagine that you would say you couldn't count those States.

Mr. Rumpz: Well, Wisconsin tomorrow may decide to adopt a death penalty statute, and if they do, they'll have to affirmatively legislate a number of things.

They'll have to pick an age where it can be imposed.

They'll have to decide whether they're weighing or non-weighing.

They'll have to decide whether they're going to have a provision to execute the mentally retarded.

All of those things have to be considered by the State legislature, and I don't think we can presume--

Unidentified Justice: Let me try this another way.

Do you... do you concede that if there is a consensus, whatever that means, then this Court should make the determination that we're asked to make here?

Mr. Rumpz: --No.

Unidentified Justice: You don't agree that if there's a consensus, then the Eighth Amendment would bar it.

Mr. Rumpz: No.

And... and I think that--

Unidentified Justice: This Court said that might, indeed, be the law in Penry, but you say we were wrong there.

Mr. Rumpz: --No.

I... I refer the Court to Spaziano v. Florida where the... where the Court said you don't just nose count.

You... you have to look at the whole... the whole picture, and just because sister States decide to do one thing or not do other things doesn't necessarily bind the... the... this Court and the other States.

Unidentified Justice: But you do not even accept the notion that if there is a consensus and we find there is, that that answers the question.

I take it you do not accept that.

Mr. Rumpz: I think that Spaziano says different.

Unidentified Justice: Well, do you accept the view that there is in fact an evolutionary element in Eighth Amendment jurisprudence, that in fact it does change as... as societal notions of reasonableness in terms of cruelty change?

Mr. Rumpz: Well, this Court has said that there... that there is.

Unidentified Justice: That's the answer.

You don't have to agree with it.

The Court said that.

That's the position I'm in too.

[Laughter]

So, you... you accept that as the framework that we are supposed to be working in.

You submit your case on the basis of that framework.

Mr. Rumpz: That's what... that's what this Court said in Penry.

Unidentified Justice: May I ask another question on a little different line?

I think there's been sort of a consensus in the argument here that the number of executions of the mentally retarded is rather small.

Mr. Rumpz: Yes.

Unidentified Justice: And does not that reflect the fact that juries generally are reluctant to execute the mentally retarded, to impose the death penalty on the mentally retarded?

Mr. Rumpz: I... I don't know that that reflects that.

That... that could reflect a number of things.

That could... that could reflect mitigation versus non-mitigation.

It could reflect... the brief of the--

Unidentified Justice: Well, if... if it is true, isn't... is that not one of the facts on which the Court relied in the rape case, holding that the crime of rape could not be... command the death penalty?

Mr. Rumpz: --Exactly.

This Court looks at the laws and the application of the laws.

Unidentified Justice: And the... and the number of juries that refuse to impose the death penalty.

And so, that's part of the consensus is what the juries have done as well as what State legislatures have done.

Is that not right?

Mr. Rumpz: That is exactly right.

But I don't think that you can infer that because there are X many of... of juries who have given sentences to mentally retarded that that means juries are... are reluctant to do it.

Unidentified Justice: There are very few executions of women in the United States.

There have been for many years.

Do you think we should make an exception to the death penalty for women?

Mr. Rumpz: Absolutely not.

Unidentified Justice: Because juries so rarely impose it?

No, but it is... it is part of our law.

And I read you a sentence out of Coker against Georgia.

It is true that in the vast majority of cases, at least 9 out of 10, juries have not imposed the death sentence.

And that was one of the reasons why the Court held that the death sentence was unconstitutional.

Is that not correct?

Mr. Rumpz: Well, I think that the fact that we're here arguing this case today is proof that juries do, in fact, give the death penalty to mentally retarded people.

They... they gave it... the Commonwealth's brief is... is... got two or three pages of cases where--

Unidentified Justice: No.

The point isn't that they never do.

It's the point that they rarely do.

Mr. Rumpz: --And the fact that they rarely do, like I said earlier, could mean that juries believe, just as Atkins' team believes, that it... that it should be rarely imposed.

Unidentified Justice: Well, it... it also may represent a jury's belief that it is a mitigating circumstance of such force that they should be spared the death penalty.

Of course.

Mr. Rumpz: And I agree.

And in this case, the jury was specifically told about Atkins' mental retardation.

Two doctors testified about it at length, and two different sentencing juries, after hearing from Atkins' expert witness, and after hearing the vile nature of his crime and about his 25 prior felonies, 24 jurors gave him the death sentence.

Unidentified Justice: Ms. Rumpz, in making this cruel and unusual decision... this is an issue that's come up before, but does what the rest of the world think about executing the mentally retarded... should that have any relevance at all?

I mean, we have, since the time we said we don't look to the rest of the world, been supporters of international human rights tribunals in... for the former Yugoslavia, for the former Rwanda.

But is it still, would you say, just irrelevant that most of the rest of the world thinks that mentally retarded people... because it's inhuman to execute them?

Mr. Rumpz: This Court has said previously that the notions of other countries and the notions of other lands cannot play the deciding factor in what--

Unidentified Justice: Not deciding.

I asked you if it was relevant.

Mr. Rumpz: --Well, it is relevant in... as Justice Scalia said in one of his opinions, to determine whether our practice is a historical accident or not.

But it certainly is not relevant in deciding the Eighth Amendment principle.

Unidentified Justice: Most of the world would not execute rocket scientists.

Isn't that right?

Including the European Union?

Mr. Rumpz: Most of the--

Unidentified Justice: Would not execute rocket scientists.

Mr. Rumpz: --Yes, the majority of... of the... of the planet--

Unidentified Justice: So, we should abolish the death penalty--

Mr. Rumpz: --is opposed--

Unidentified Justice: --if that's... if that's to be a--

--I asked if it was relevant.

Mr. Rumpz: --And... and--

Unidentified Justice: I didn't ask if it was dispositive.

Mr. Rumpz: --It's not dispositive, and it is relevant once the Eighth Amendment principle has already been established.

It's not relevant in establishing whether something is cruel and unusual.

Unidentified Justice: Why do you need it after it's been established?

You don't.

Mr. Rumpz: You don't.

You... you look... you look after the fact to see whether... I guess my answer I guess is it's not relevant.

Unidentified Justice: That's what I thought.

Mr. Rumpz: It's not relevant.

Unidentified Justice: I was going to... I did not have a chance to ask petitioner's counsel because his rebuttal time was running up, but it's important to me.

Mentally retarded people constitute about 1 percent of the general population.

I've looked through the briefs and just could not find... are there any statistics that you know that tell us what the prison population percentage of mentally retarded people are?

What is the mentally retarded population of the criminal system generally?

Do you know?

Mr. Rumpz: I don't know, and it... there--

Unidentified Justice: Would it be the same as the general population or higher?

Mr. Rumpz: --I... I couldn't speculate.

We don't know and it's not in this record what the... what the prison population of mentally retarded people--

Unidentified Justice: What is the status of the legislation in Virginia on this point now?

Mr. Rumpz: --It was... it didn't pass the House.

Unidentified Justice: It passed one house but not the other?

Mr. Rumpz: Passed... bicameral legislature... Virginia.

Passed the Senate, didn't get out of the House.

Unidentified Justice: Was it voted on in the House?

Mr. Rumpz: I don't know.

Unidentified Justice: I thought it wasn't voted on.

Mr. Rumpz: I don't believe it was voted on.

I think it was... it was... it died in a committee I think.

I'm not positive about that.

I was actually here when they did that, and I wasn't... I know that it... it didn't get past the House side of the... of the General Assembly.

To... to sum up, the national consensus issue is the key issue here today, and this Court needs to... as... as the earlier argument or the earlier comments were, the Court needs to recognize as, Justice O'Connor, you recognized in Thompson and, Justice Scalia, you mentioned today, any decision this Court makes regarding this issue is irreversible.

It is likely irreversible.

These States who have enacted these laws, these 18 States that have enacted these laws, the longest one has been on the books for 13 years.

Some of them have been on the books for less than a year.

On average, they've been on the books for an average of 5 years.

Well, a national consensus has to be broad, clear, and enduring.

Certainly statutes with an average age of 5 years don't establish an enduring national consensus against something.

That's a blip in the radar screen of public opinion, or to borrow from Justice Scalia, it's a pendulum swing in public opinion.

Now, these State legislatures may decide in 2 years--

Unidentified Justice: How can you say it's a pendulum swing when it's all in the same direction?

I thought a pendulum went back and forth.

[Laughter]

Mr. Rumpz: --It's a pendulum swing one way.

Unidentified Justice: It only goes in one direction at a time, doesn't it?

[Laughter]

Mr. Rumpz: But... but my point is this practice has been allowed since the Bill of Rights was adopted in 1789, and we have 18 States, some of which can't decide in between themselves whether the mentally retarded should or shouldn't be executed, with an average age of 5 years.

Now, certainly 5 years is insufficient to determine whether there is an enduring national consensus against something.

These States, as somebody recognized here earlier, may determine in 2 or 3 years that this is an experiment that just didn't work.

Unidentified Justice: Well, do you accept that there's a consensus and want to argue it's just not enduring?

Or what is it you're arguing?

Mr. Rumpz: No.

I... I think there's not a consensus, first of all, and my backup position is if there is a consensus, it certainly isn't one of an enduring nature.

I don't think 18, even if you say all 18 of the States and ignore the retrospective/prospective... I don't know 18 out of 38 is a consensus.

It's not even a majority, let alone a consensus.

But even putting aside that for the matter, you... even if you put that aside, we don't anything that's enduring.

We don't have anything that shows that the long-term public opinion is against execution of the mentally retarded.

We have a blip in the radar screen of public opinion which may change in 2 years.

It may change in 3 years.

If Osama bin Laden was brought back to the United States tomorrow, found to be mentally retarded and not being able to... to be executed, public opinion would change, and there would be... the blip in the radar screen would go away and the public opinion would be something different.

But if this Court were to constitutionalize the prohibition, the public wouldn't have any opportunity to change their mind.

And as this Court has said before, the States are laboratories.

The States are laboratories for novel social experimentation.

Well, this experiment is just beginning.

This Court... this... there's... there's... this Court should not call a halt to an experiment that has been on average for 5 years, especially when, as Justice O'Connor, you recognized in... in Thompson, that halt could be irreversible.

And if there are no further questions.

Unidentified Justice: Thank you, Ms. Rumpz.

Mr. Ellis, you have a little less than a minute left.

REBUTTAL ARGUMENT OF JAMES W. ELLIS ON BEHALF OF THE PETITIONER

Mr. Ellis: I'll endeavor to answer a couple of the questions that this Court has raised.

First, with regard to Justice Kennedy's question about prison population, we don't have a reliable statistic.

There is some indication, especially for very low level crimes, that there may be a higher level of people with mental retardation than in the general population.

With regard to the States, Spaziano, it seems to me is a very important case here because it says we're not simply counting up States.

We're seeing whether the States have reached a moral judgment, have reached a conclusion that the... in this case, the understanding of people with mental retardation, their ability to control their behavior, their understanding of the context in which they behave, the maturity and responsibility with which they reach moral judgments is... makes the death penalty unacceptable.

Chief Justice Rehnquist: Thank you, Mr. Ellis.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Penry v. Johnson - Oral Argument

Fri, 09 Jan 2009 14:50:33 +0000

Case:

Penry v. Johnson

Media File:

00-6677_20010327-mq-argument.mp3

Related Transcript:

transcript.xml

Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

JOHNNY PAUL PENRY, Petitioner v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.

No. 00-6677

March 27, 2001

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:03 a.m.

APPEARANCES: ROBERT S. SMITH, ESQ., New York, New York; on behalf of the Petitioner.

ANDY TAYLOR, ESQ., First Assistant Attorney General, Austin, Texas; on behalf of the Respondent.

GENE C. SCHAERR, ESQ., Washington, D.C.; on behalf of Alabama, as amicus curiae, supporting Respondent.

PROCEEDINGS

QUESTION: Mr. Smith?

ORAL ARGUMENT OF ROBERT S. SMITH

ON BEHALF OF THE PETITIONER

MR. SMITH: Mr. Chief Justice. May it please the Court. I think my first task here is to show you that what the Texas Court did was contrary to or an unreasonable application of your previous decision in Penry in this case, and I believe that your decision in Penry or Penry One as we call it in our brief was fairly clear in saying that as to this man, a retarded man like this with a life long history of really gruesome child abuse where virtually his whole case is based on the retardation and the horrible child abuse, that the three questions of the old Texas statutory scheme just don't work or at least they do not work unless you take the first question which asks whether the defendant acted deliberately and give "deliberately" a definition.

It would have to be a rather unusual definition of deliberately that will tell the jury, contrary to the normal meaning of the word, that you can find that conduct resulting from child -- from retardation maybe even from child abuse, although that's perhaps a stretch, could be a basis for a finding that the defendant did not act deliberately.

When you summarized in Grand v Collins the Penry holding, you said and I'm quoting from page 474 of 506 U.S. Reports, you said that "in Penry it was impossible to give mitigating effect to Penry's evidence by way of answering the special issues. Grand says that without any qualification. I would assume that one qualification is appropriate because Penry does indicate that there is -- that the definition of deliberately was a possibility for --

QUESTION: It was impossible there under the instructions that were there given, but the instructions here given made it very clear that if you considered the mental deficiency to be a mitigating factor you should answer one of the three questions "no". In defense's closing argument he said the following, I don't understand how the jury could have misunderstood it. "Let me try to simplify it. If when you thought about mental retardation and the child abuse you think that this guy deserves a life sentence and not a death sentence, decide life imprisonment is punishment enough then you've got to answer one of those questions no. The judge has not told you which question and you have to give that answer even if you decide the literally correct answer is yes. Not the easiest instruction to follow and the law does funny things sometimes but it is what it says and I've taken all this time with you to make sure you understand what it says." That's pretty clear to me.

MR. SMITH: I think that's clear, Your Honor, indeed I said it and I thought I was being clear when I said it.

QUESTION: I thought you were imminently clear.

MR. SMITH: But I -- but I was not a judge, Your Honor, and there is no one of whom a jury is likely to be more skeptical in a situation like that than defense counsel. I beg to differ with the suggestion that the judge made it clear, and I think it's the instruction that the judge gives that has to be clear for starters. I don't think you -- I don't think you can rely on defense counsel or on the jury's acceptance of defense counsel's interpretation. The instruction is at page --

QUESTION: How about this sentence: if you determine when giving mitigating effect to the mitigating evidence, if any, that a life sentence as reflected by a negative finding to the issue under consideration rather than a death sentence is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues.

MR. SMITH: I respectfully submit that's much less than clear, Your Honor, and becomes even less clear if you read the preceding sentence. The preceding sentence says "if you find that there are any mitigating circumstances in this case you must decide how much weight they deserve, if any, and therefore give effect and consideration to them in assessing defendant's personal culpability at the time you answer the special issue."

QUESTION: Right, and then the next sentence explains just what he means by giving, in assessing the defendant's personal culpability. It says "an appropriate response to the personal culpability a negative finding should be given to one of the special issues." I really -- we assume the jury is -- even if the defendant is mentally deficient that the jury is not and that -- that instruction seems clear enough to --

MR. SMITH: I can only respectfully beg to differ, Your Honor, and in doing so I'll -- let me stress a couple of phrases.

Give effect and consideration to the mitigating circumstances at the time you answer the special issue. I respectfully submit to you that that is impossible. That is as if I said to this court would you please give effect and consideration to Estelle v. Smith at the time you resolve the Penry issue in this case.

If I said that I think I would get nothing but blank looks because I think that is a meaningless statement, but it's identical.

QUESTION: This is also the jury that you told on I guess it was you doing the voir dire as well -

MR. SMITH: No, it wasn't.

QUESTION: Now this instruction that you got, this is almost like a fourth issue in that you will hear this other evidence that comes in about the defendant, you will take that into consideration when you are answering these three issues.

MR. SMITH: That was a voir dire, that wasn't me actually Your Honor that was a voir dire back in March.

QUESTION: That was pretty well done too I thought.

MR. SMITH: Done by Joe Price, who's a very able man but he was doing it back in March and the jury didn't deliberate until July. I know of no case where the court has held that an improper instruction or even an ambiguous instruction was clarified by voir dire questions asked four months previously or by voir dire questions. I don't think that works. The prosecutor did not, neither Mr. Price nor his colleague, they did not say in their closing argument, they did not reinforce what I had said to the jury. They did not differ from it, they did not reinforce it. They chose to remain silent and get whatever benefit they could get out of what I think is an extraordinarily confusing situation.

To me the important fact was not the -- not defense counsel's argument, but the jury one might expect would pay somewhat more attention to the piece of paper that they were handed to write their verdict on from the court which was identical 100 percent verbatim identical with the piece of paper they were handed in Penry One and which said in it as part of the instructions as -- or actually as part of the verdict form, there's nothing about mitigating evidence on that piece of paper but there is something that says if you want to answer no, it has to be because there's a reasonable doubt as to I believe it's the facts pertaining or the evidence pertaining to the special issue. In other words they had to find that there was reasonable doubt as to whether the state had proved --

QUESTION: Do we have the verdict form that you're talking about? That would be helpful if we could look at it

MR. SMITH: You certainly do and I believe it's at 676 of the joint appendix. If that's not it, it's close. Yes, that's where it is. The question is to -- to vote no to any question the foreperson had to sign a statement that said "We the jury because at least ten jurors have a reasonable doubt as to the matter inquired about in this special issue find and determine that the answer to this special issue is no. The matter inquired about in this special issue had nothing to do with mitigating evidence. They were supposed to understand from what I submit with all due respect, Justice Scalia, is a very obscure instruction however lucidly explained by a defense lawyer who they did not have to trust that a -- they had to understand that those words that I just read did not mean what they said, and I think that that is not reasonable to ask of a jury.

QUESTION: What is confusing about the instruction "If you determine when giving mitigating effect to the mitigating evidence, if any, that a life sentence as reflected by a negative finding to the issue under consideration rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the special issues"?

MR. SMITH: Well, what is -- a number of things I think are confusing about it including the extraordinary fact that it doesn't give them any hint which one to pick, but the words I would focus on are most strongly -

QUESTION: If it had given them a hint as to which one to pick, you'd object to that, the fact is that we all acknowledge as we held in Penry One, it doesn't naturally come under any one of them so the judge's instruction was the Supreme Court has said this mitigating evidence doesn't come under any one of the three, so in effect, as counsel said in the voir dire, I'm creating a fourth special issue and if you find mental incapacity, say no to any one of the three and I think that's what this sentence says.

MR. SMITH: I submit it would have been significantly less confusing if they had indeed put a fourth question on the piece of paper Your Honor, but I also want to call your attention in the instruction to the words "as reflected by a negative finding to the issue under consideration". I suggest to you that those words, if they have any meaning at all, if the possible defense of them is if they have no meaning at all, that's the best that can be said for them, but if they have a meaning they mean that you cannot give effect to the mitigating evidence unless you can reflect it to -- I mean a negative finding to the issue under consideration, whatever that is.

QUESTION: At any rate the verdict form that they got gave them the three questions. It didn't contain this fourth question?

MR. SMITH: There was no fourth question.

QUESTION: So if a jury is hearing fleetingly this long instruction then gets a piece of paper with three choices answer yes or no, maybe it's not so clear.

MR. SMITH: I figure it was not so clear especially if they do not necessarily take defense counsel's word unsupported by the prosecutor --

QUESTION: How would you have done it, Mr. Smith. Do you think the judge had authority to override the Texas statute which only provided for these three questions and simply invent a fourth of his own?

MR. SMITH: I don't think he had authority. I think you'd already done that for him Your Honor?

QUESTION: Well, I don't think we created a fourth question under Texas statutory law. I think what we said is that the mental incapacity has to be one of the factors the jury is allowed to take into account and I think it's a perfectly reasonable way for the judge to say find no to one of the Texas special issues in the statute, if that's -- if that's what you -- what you think is the case.

MR. SMITH: I think it's fair to characterize what you did in Penry and Penry One, Justice Scalia, as holding the Texas statute unconstitutional as applied to Penry and when the statute is held unconstitutional of course the state court on retrial need not observe it. There was the escape hatch that was one of giving a definition of the word deliberately. I have no idea, I cannot imagine why the trial court did not do that or why the prosecution did not suggest that they do that, but they didn't. That -- I admit that that's not without its difficulties but the suggestion --

QUESTION: Did you ask for that?

MR. SMITH: Yes we did, Your Honor. We actually asked for two definitions of deliberately. There's one that's in the appendix the joint appendix and I think I realize in going over it I think maybe the better one is the one that's not in the joint appendix. There are two definitions of deliberately; request for instruction number 11 which is not in the appendix but it's in volume three of the record at 107172 is an attempt, and it's moot whether it would have been successful, to use the jury instruction to cure the Penry problem. We also -- we also proposed several instructions that would -- well I think one that would have given a fourth question, one that would at least have said in plain English nullify, give a false answer, you don't have to tell the truth in response to these questions. I think if the judge had done that, I think he runs into problems under Roberts against Louisiana.

QUESTION: I don't know whether he runs into problems under Roberts, because what Roberts as I have read the opinion objects to is the capriciousness, the fact that the jury could act with no evidence at all. And here the instruction is quite clear as to what sort of evidence the jury would act on.

MR. SMITH: It is true that Roberts was -- depended in part on the capriciousness, but the thrust of Roberts I think is that it's intolerable to tell the jury to disregard what they are being told to do.

QUESTION: Roberts had a reason and the reason that Roberts gave why it was intolerable was that the jury was just invited on no evidence whatever to move the offense downward which would have been the exact thing that Furman objected to.

MR. SMITH: As I understand what the state was contending in Roberts is not that dissimilar from what the state is contending here. The state was saying sure we could give effect to mitigating evidence. We have all these proposed verdicts and we tell them that they can render a false one if they want to. That's exactly what the state's arguing. That's what they propose to do here.

QUESTION: The state is arguing that you can respond to evidence which you believe in this particular way. It isn't saying just, you know, if you feel like -- if you just feel generally this guy shouldn't get the death sentence go ahead and find another verdict

MR. SMITH: Well it -- in Roberts as I understand the argument that was rejected in Roberts, no one was -- no one was saying oh, there's no problem with the statute because the jury can do whatever it wants. They were saying yes we can give individualized consideration to individual offenders. We do it in this perhaps rather unusual way by having the jury give false answers. And the Court said that's not an acceptable way of doing it. That's my reading of Roberts.

QUESTION: In any case you didn't get that alternative instruction so we don't get into Roberts, right?

MR. SMITH: That's right. I don't think we got a nullification instruction. I'm not sure what position my adversaries are going to take. I've read their brief and I don't know what their position is on whether we got that instruction. The --

QUESTION: Mr. Smith, you mentioned one instruction you proposed that's in the record but not the joint appendix. Was there another one that's in the joint appendix?

MR. SMITH: Yes, and it is -- it is in the joint appendix and it is cited in my brief, I do not have the -- I can find it pretty quickly. I think I can. If not I will defer Your Honor's - it's in the third volume of the appendix. It is at page 669, and I would say Your Honor that -- if the question is whether that particular instruction would have cured the Penry error, I would have to answer no. That one would not have. I think the other one we proposed might or might not have. It's moot because we didn't get any of them. If the question is whether we proposed things that would have cured the Penry error, it's very clear the answer is yes. We did it this way, we did it the other way, we did it -- there are plenty of proposed instructions that we think could have complied with Penry. The court gave none of them.

QUESTION: Was the so-called Penry instruction on paper at the time of this resentencing hearing, the law that is in effect in Texas now?

MR. SMITH: No, no, was it on paper? It certainly had not been enacted and as far as I know did not exist, Your Honor?

QUESTION: What happens if we find for you in this case? It goes back. Would this case, if the state wishes to do so be resubmitted to a jury under the new statute?

MR. SMITH: Under the new statute, yes.

QUESTION: And is that okay? Is that constitutional?

MR. SMITH: I think so, Your Honor. I am not above trying to think of a way to --

QUESTION: You haven't thought of one yet though.

MR. SMITH: I don't think I have -- I don't think I --

QUESTION: No, no, You don't have to commit yourself, but that's presumably what would happen or what the state would try to make happen.

MR. SMITH: Yes, yes and I would -- while I might not give it up, I would have a tough time saying that Penry was not complied with under the new Texas procedure.

QUESTION: Did the judge say it was simply beyond his authority to alter these three special issues?

MR. SMITH: He did not say that. One can infer that's what he believed Your Honor. He did not say anything.

QUESTION: I'm not sure what the judge is supposed to do if this court says one thing and the legislature says the other. Obviously, he can't ignore the mandate of this Court. On the other hand I don't know if he can just hold the matter in abeyance. Was there any suggestion that there be a delay in these proceedings while the legislature got its act together?

MR. SMITH: I'm not aware of such a suggestion, Justice Kennedy. I do submit respectfully the answer to your previous question is clear enough although it's unfortunate when a judge is sitting with the United States Supreme Court saying one thing and the Texas legislature saying another. The Court wins. He has to follow what this Court says.

QUESTION: In the sense that the instructions as drafted, as legislated, cannot be given, I'm not sure if he has the further authority to go ahead and invent additional instructions under Texas law. I just don't know.

MR. SMITH: I guess I would answer by saying if the Texas statute has been held unconstitutional as applied then it's perfectly appropriate for a Texas judge not to implement it. I see nothing wrong with that.

Let me try to talk briefly about my second task, if I can, which is to show that the -- this Peebles psychiatric report was contrary to or an unreasonable application of this Court's decision in Estelle v Smith. Based on the briefs I think that issue is going to boil down to whether the Peebles report was the sort of rebuttal that is permitted under Buchanan against Kentucky. I think it is quite clear that it is not. The Peebles report which is at page 60 of the joint appendix served one function in this case for the prosecution and that was to introduce one sentence which says it is -- "it is my further professional opinion that if Johnny Paul Penry were released from custody that he would be dangerous to other persons". That is the heart of that -- that statement is summarizes perfectly what the state was trying to prove on its affirmative case of future dangerousness. On that issue the defendant produced no mental status evidence, no psychiatric evidence and there was no occasion for rebuttal. They didn't rebut anything we said.

That is, no -- no court below by the way found that it was rebuttal. The theories of the courts below are so weak that as I read my adversary's briefs they do not defend the theories of the courts below. The state does and its allied amici do at some length argue harmless error. I do not see how you can think an error was harmless or the admission of a piece of evidence was harmless when you look at what the prosecution did with that piece of evidence, and that is at page 7 of our brief. This is the last page, the last paragraph of the prosecution's rebuttal summation. This is the climax, this is what he saved to have ringing in the jury's ears when they went out to deliberate. "He was examined by Doctor Felix Peebles who found that he was sane. He knew the difference between right and wrong and he was competent to stand trial." But Doctor Peebles went on and made an additional finding that was really out of the ordinary and I have never seen this in any kind of a report. I'm quoting the prosecutor, closing out. He just added it, he said that "it is my further professional opinion that if Johnny Paul Penry were released from custody that he would be dangerous to other persons". The question of course comes why -- why did the state love that report so much? They say and they're right the dangerousness was not a tough issue for them, but I think the Curt must remember that the jury wasn't just answering yes or no to the second issue. Under your decision in Penry the jury had to take into account had to weigh the mitigating evidence against the perfectly horrible and very real evidence of man's dangerousness. And I submit to you that it was a very tough and very close case because the --

QUESTION: Close case, on which issue?

MR. SMITH: It was a close case on how you come out at the end when you consider that there's a ton of mitigating evidence and also very serious evidence of dangerousness.

QUESTION: Well, but of course the evidence of dangerousness is perhaps more precise than the mitigating evidence. The jury doesn't have to credit any particular evidence even though it believes the witness, it doesn't have to believe that that is mitigating

MR. SMITH: It doesn't have to Your Honor, I do not -- I can only refer Your Honor to the record on this. The record of the mental retardation and the child abuse is as appalling as you could want. If you browse through about pages 139 to 219 of the record which is the testimony on the child abuse, it is the most painful reading you'll ever -- you'll ever have in your life. This was first of all it's a retarded man but it's a retarded child whose mother beat him physically, abused him verbally, humiliated him in the most revolting ways.

QUESTION: But you don't weigh future dangerousness against that as you put it. They are two separate issues. That goes to the issue of personal culpability.

MR. SMITH: Yes.

QUESTION: And future dangerousness is a totally different issue. You don't weigh the one against the other. I don't see how anything you said with regard to his dangerousness would affect the jury's determination regarding how culpable he was.

MR. SMITH: I beg to differ. Of course it would not affect the jury's determination of how culpable he was but the jury had the power to decide I don't care how much abuse he had and how much retardation he had. I don't feel safe with this man still alive. They had the power to make that decision. That's the decision the prosecutor was asking them to make. That's why dangerousness was the prosecutor's big point and the Peebles report was the prosecutor's big exhibit. If you read the prosecutor's summation he clearly thought --

QUESTION: But there was other evidence of future dangerousness.

MR. SMITH: There was indeed but this was the one he liked best.

QUESTION: Well, the fact that the counsel may have used this in his summation doesn't really go to the harmless error question, if there's a whole lot of other evidence as to future dangerousness.

MR. SMITH: I think it does, Your Honor, because I do think it was important not just whether the jury thought he was dangerousness -- dangerous but whether -- but how disturbed the jury was by the dangerousness. I think the degree of dangerousness and the impact it had was terribly important at the trial.

QUESTION: One sentence?

MR. SMITH: One -- one sentence which - it is a sentence which as the prosecutor points out appears to have been stuck in there by this professional, this uncross-examined professional with no axe to grind who from reading the report you would think he took one look at the man and said this man is so dangerous I've got to volunteer it to the court. I don't know if that's what really happened but that's what the prosecutor suggested to the jury.

QUESTION: But I still don't see how that means that this one sentence is so controlling that all the other evidence of future dangerousness can't be looked at to decide whether it was harmless error.

MR. SMITH: I'm not saying it can't be looked at but I think to decide whether it's harmless you have to say how different is the case without it, different enough that the prosecutor would not have had this key point.

QUESTION: Maybe it wasn't an Estelle v Smith violation at all. I mean I don't know -- I'm not sure you get into harmless error. Maybe it wasn't error.

MR. SMITH: Well we think it was Your Honor. I think the argument the main argument against that it wasn't Estelle error is Buchanan against Kentucky and I've tried to show this certainly wasn't rebuttal, they weren't rebutting anything. There are other theories and I think they're very very very tenuous indeed it's not even clear from my adversary's briefs that they believe. If I may, I'll reserve the balance of my time.

QUESTION: Very well Mr. Smith. Mr. Taylor we'll hear from you

ORAL ARGUMENT OF ANDY TAYLOR

ON BEHALF OF THE RESPONDENT

MR. TAYLOR: Mr. Chief Justice and may it please the Court. Unlike Penry One, where no instruction was given this case involves an instruction that was not only given but said in its express words that this jury could give effect to a moral determination of this man's personal culpability such that if they felt despite literal answers to the three questions that Texas submits that a life choice instead of death was the appropriate reasoned moral response, then answer one or more of those questions no.

QUESTION: Even though literally they should answer yes. I mean that's such an odd posture in a sense it's very awkward to say the least.

MR. TAYLOR: We submit that it is not awkward because of the actual words contained in the instruction as Justice Scalia read out loud in that particular instruction that was given, and I might add, Justice Ginsburg, that instruction was attached to the three submission charge that went back in the jury room. It wasn't something that was said verbally and never seen again in writing but once that instruction was put together, it made clear that to give a vehicle to this jury to choose life instead of death it could answer no even if they felt that it would be a literally an answer of yes.

QUESTION: The last colloquy we just had with petitioner's counsel was to the effect that really evidence of child abuse and so forth doesn't relate to future dangerousness

MR. TAYLOR: I think that was the point of Penry One --

QUESTION: And that's our whole concern here.

MR. TAYLOR: I agree and what you taught us Your Honor in Sapple is that while we must channel and limit the discretion that a sentencing jury has in finding out if a defendant is eligible for the death penalty, it is not unconstitutional to shape and to structure that jury's consideration of all of the evidence so that they can make a life choice.

QUESTION: Isn't the difficulty in this case that what you describe as the structure is in effect an instruction that says you may act irrationally and as against that possibility there were at least two avenues open to the court that would have allowed the jury to do just what Penry One required and to do it in a rational way? One way would have been to add a fourth question and say "even though you answer yes to one, two and three you also have a responsibility to consider mitigating evidence and if you do so, you may in fact answer this fourth question" however it might be structured "in a way that says don't impose the death penalty any way".

A second rational way to do it -- I don't how easy it would have been but I assume it could have been done, would have been with a definition of deliberately and the question the second question I guess, which instructed the jury that a person of some degree of retardation simply does not -- is not capable of the mental process that "deliberately" assumes or requires. So what it boils down to is the state had at least two ways in which Penry could rationally have been given consideration, and instead the court decided to do it in an irrational way saying even if all the evidence leads to a yes answer, you can say no any way, and that's to me the nub of the problem here because if as we have repeatedly said the jury is supposed to engage in some kind of a reasoned moral process, this was not a reasoned moral process; it was an irrational process. What's your response to that?

MR. TAYLOR: Any of those three would be constitutional. This Court has never told the state of Texas that in structuring and shaping the jury's consideration of all of the relevant consideration of evidence including mitigating evidence, it must choose a particular way to --

QUESTION: No, but it has -- this is the point of my question, it has repeatedly told everybody that the process of arriving at a determination or a choice between life and death is supposed to be a reasoned moral process and it seems to me by definition inconsistent with that standard to say that it suffices to tell the jury that you may behave in a totally irrational way.

MR. TAYLOR: We think that it was a reasonable choice and certainly a reasonable application under the Edpa standard for this trial judge to pick an instruction as opposed to a fourth question. First, Penry One tells us to use an instruction. It doesn't tell us to use a question. Second the submission that state law allowed at that time asked for three questions, not four. There was no appellate decision in Texas suggesting that a fourth question was appropriate.

QUESTION: You don't concede, do you, that giving a negative response to any -- to all of the three questions on the basis of the mental incapacity of the defendant would have been irrational? That is to say even though a deliberateless -- deliberateness instruction was not given, you don't concede that it would have been irrational for the jury to find that since this defendant did not have adequate mental capacity, he did not act with the requisite deliberateness?

MR. TAYLOR: We do not concede that point, Justice Scalia.?

QUESTION: You don't think that's irrational?

MR. TAYLOR: We do not.

QUESTION: What we said in Penry One was that that is not necessarily clear to the jury, but we didn't say that it was irrational.

MR. TAYLOR: That is correct, Your Honor, and I might add - -

QUESTION: We did say in Penry One that it was an inadequate alternative, didn't we? That's why the case went back.

MR. TAYLOR: In Penry One although it was not clearly established under the Edpa standard that confronts this Court, the Court did say that there was no instruction on mitigating or rather on deliberateness so the Court --

QUESTION: In other words in the absence of a deliberateness instruction different from the one given in Penry One, the Penry instructions were not adequate. That's what Penry held, didn't it?

MR. TAYLOR: We respectfully disagree.

QUESTION: You don't think it held that?

MR. TAYLOR: We do not. What Penry One taught us is that --

QUESTION: Then the irrationality apparently started with this Court.

MR. TAYLOR: What Penry One taught us --

QUESTION: Why did we reverse the case?

MR. TAYLOR: It's not been reversed but Sapple and Buchanan and other cases teach us that there must be an instruction. Once you get an instruction then we go through a Boyd analysis of whether or not the instruction got the job done. The instruction that you referenced on deliberateness that defense counsel requested is in your joint appendix volume three page 669, and in that instruction there is not one reference made to mitigating evidence. That couldn't have got the job done. It was a reasonable decision on the part of the Texas courts.

QUESTION: I think counsel said this was one of various ones he had been -- you're not holding him simply to this instruction.

MR. TAYLOR: No, we are not, Your Honor, but the point is --

QUESTION: His point is this just shows how hard it is to do.

MR. TAYLOR: Well the point that we're making is that in order for an instruction on deliberateness to work under Penry One and the cases thereafter, it would have to direct the jury's attention to the mitigating evidence. That instruction doesn't get it done. What instruction was given specifically tells them that they have the power to answer no instead of yes and I might add under Boyd that case taught us that in determining if the instruction was erroneous or ambiguous that we look at the totality of the circumstances. We don't parse and make --

QUESTION: Mr. Taylor, can I just ask you one question. It seems to me that one things that cuts across all the instructions are the special issues that were given to the jury at the very end and with respect to each of the three special issues, the jury was said in order to say no to that, we the jury because at least ten jurors have a reasonable doubt as to the matter inquired into in this special issue find and determine that the answer -- issue is no. Now how could any -- how could the foreperson sign a negative answer to a special issue unless there were several jurors who said I don't think the facts support it?

MR. TAYLOR: Because the instruction told them to. The instruction specifically says if you determine when giving mitigating effect to the mitigating evidence if any that a life sentence as reflected by a negative finding as to the issue under consideration rather than a death sentence - -

QUESTION: That's flatly inconsistent with the command in the special issue that because at least ten jurors have a reasonable doubt we must answer no.

MR. TAYLOR: We submit that it is not flatly inconsistent. In fact it is entirely consistent because what you taught us in Boyd is that you must look at all of the charge, not only a certain section to answer the question --

QUESTION: Mr. Taylor, you said before that the instruction, the so-called fourth instruction, accompanied the jury into the jury room together with the three special issues. Physically what did the jury have? They had on a piece of paper the three questions and then where did the fourth issue show up?

MR. TAYLOR: The charge and the accompanying instructions is found in volume three of the joint appendix beginning at page 672, Justice Ginsburg, and that charge does a couple of things. It not only tells the jury to take into consideration all of the evidence but it goes further and it tells them that they should look at all of the mitigating circumstances and including in that look at the defendant's character, record, circumstances of the crime, and then they have to look at a broader principle and that is what is this defendant's personal culpability not limiting it to only the question of deliberateness or future dangerousness or provocation --

QUESTION: Was all this presented so that each jury would understand from what the juror took into the jury room that these were to work together? Did they have this special issues on one page? You said something in the beginning about --

MR. TAYLOR: It's stapled together, Your Honor. This is an actual copy of what went back to the jury room and it's stapled on the front. They would have to had read it and of course it was read aloud to them during the trial. This was a six week voir dire.

QUESTION: Suppose I thought just going back to your instruction which as you read it properly "if you determine when giving effect to the mitigating evidence, if any, that a life sentence as reflected by a negative finding to the issue under consideration is appropriate", so what should I do as a juror if I thought that a life sentence is appropriate because of the abused childhood and the mental retardation, but I didn't think a life sentence as reflected by a negative answer to these questions was appropriate, what am I supposed to do?

MR. TAYLOR: You must follow your oath. The oath includes the instruction and under that circumstance morally if you believe life instead of death is the right answer, you answer no.

QUESTION: No, I didn't ask it clearly. Suppose I believe a life sentence is appropriate but I don't believe a life sentence as reflected by a negative answer to a finding to the issue under consideration; I don't believe it is appropriate as reflected by deliberation; I don't believe it is appropriate as reflected by lack of dangerousness. I believe it is appropriate for a totally different reason that is nowhere reflected in the issue under consideration then what am I supposed to do? It seems to me that this instruction is silent as to that matter.

MR. TAYLOR: You were told under those circumstances to answer no. Not only does the instruction say that. The trial court during voir dire said that and I quote. This is from the record and it's volume 27. The trial court is telling one of the members of the voir dire panel that was eventually chosen question okay, "and do you see from reading this instruction that if based on all the evidence you heard in this trial if you felt that these questions should be answered yes beyond a reasonable doubt" --

QUESTION: Suppose I accept that I know that I think we know that particular statement - -

QUESTION: Can I hear the rest of it?

MR. TAYLOR: "But you still felt that there was mitigating evidence that had been presented to you that was sufficient for you to feel that in this case the death sentence was not appropriate and a life sentence was more appropriate, then you could answer one or more of the questions no to effect a life sentence. Do you understand that?" The answer was yes. On pages 18 and 19 of our brief, the red brief, we cite voir dire references for every single one of those jurors that made it in the case. It was a six week voir dire on average over two hours was spent going over one thing and that was this instruction. This instruction was in writing and showed to the panel during voir dire. And what we learned --

QUESTION: You say a statement similar to that was made to each one of the jurors during the voir dire?

MR. TAYLOR: Statements by the prosecutor were made in each and every instance. Statements by the court were made in some instances. Statements by defense counsel were made in each instance and so --

QUESTION: When you say this instruction, you mean the instruction that is set forth as well on page 5 of the blue brief: "if you find there any mitigating circumstances in this case" or was it just the three special issues?

MR. TAYLOR: It was the instruction, the actual instruction --

QUESTION: The instruction that's set forth on page 5 was read to them in voir dire?

MR. TAYLOR: I don't have the blue brief handy.

QUESTION: Well, it's the one we're focusing on. "If you find there any mitigating circumstances in this case" et cetera.

MR. TAYLOR: Yes. The only difference, Your Honor, between the instruction during voir dire and the instruction that went back with the jury is that the instruction in voir dire said that special issue and what our opponent described as a slight improvement to the charge ultimately it said "one or more of the special issues". That's the only nuance that's different.

QUESTION: Now the Texas court of criminal appeals found that the supplemental instruction was a nullification instruction. Are we bound by that determination?

MR. TAYLOR: We think not. Nullification to the extent that we're talking about Roberts versus Louisiana is a situation where a juror is tempted and invited by the charge to breach their oath. Here the juror was not tempted to breach their oath was admonished to follow their oath. Now it's true that the lower courts and the high court in Texas referred to it as a nullification charge but there's that key distinction because they're following their oath and doing exactly what you told us in the opinion you authored for this court in Penry One. As to the --

QUESTION: Is that a matter of Texas law? Did they look at it from that perspective and say as a matter of Texas law it was a nullification?

MR. TAYLOR: Well as a matter of Texas law they did use the word nullification but in a proper way. That's not a bad word under Texas law. That is a good word because if it's a nullification instruction, the high court in Texas, the Court of Criminal Appeals, has told us that complies rather than violates Roberts and complies and rather than violating Penry.

As my time draws near I'd like to focus on the Estelle claim that was made in this case.

QUESTION: Counsel, Your time is far off still.

MR. TAYLOR: Under the Estelle claim what was clearly established and remembering of course that we're on federal habeas review, Edpa standard applies, what was clearly demonstrated in Estelle, two things, first that request for an examination of the defendant was not made by the defendant or his counsel but rather was ordered by the Court. Second, in Estelle we learned that there was no attempt at all to introduce the mind-set or the psychiatric evidence in that case, and so it was a reasonable application of Estelle for the Court of Criminal Appeals in Texas to rule that Estelle was distinguishable and not clearly applicable to this case.

In this case not only are we dealing with a request by defense counsel, we're also dealing with offensive use of psychiatric evidence by defense counsel. You'll note in the record when Dr. Price, their expert witness on mental retardation and child abuse and its effects, he testified that he relied on the Doctor Peebles report. That's a choice the defense made, not a choice that the prosecution made.

QUESTION: Mr. Taylor, what I don't understand about this is I don't understand what evidence that Penry submitted that statement by Doctor Peebles rebutted.

MR. TAYLOR: Of course, we contend that Estelle is not applicable but if you believe that Buchanan applies and the only way that we can win is to argue that it's solely and exclusively rebuttal, the answer to that question that demonstrates why we still prevail and why the court below was correct is that in the Peebles Report there is a statement made that the reason that this gentleman doesn't learn from his mistakes is not because of mental retardation, not because of child abuse but rather because he is a psychotic individual.

He has an anti-social personality disorder. He's a psychopath and so therefore it's very important in determining personal culpability and whether he should get death instead of life to be able to demonstrate from the prosecution's point of view this man is not any less culpable because his violent behavior, his future dangerousness is not the result of mental retardation. It's the result of the fact that he's a psychopath and therefore he is not any less culpable than any one else absent such evidence of mitigating circumstances. And Justice Ginsburg, it is for that reason that we still prevail even if you believe that under Buchanan and its rebuttal exception that is all that we have here.

QUESTION: This part of your argument it seems to me contradicts your first. You're saying the jury can't really consider mitigating circumstances because we're talking about dangerousness. That's exactly the opposite of what you're saying in the first part of your argument.

MR. TAYLOR: Well the first part of our argument we're saying is Estelle doesn't apply on its facts, that as to the Buchanan exception, we're suggesting and the question I believe was what part of the report would be rebuttal to what they were saying in the punishment phase, what Dr. Price was saying is that I'm not focusing on the future dangerousness part but what Dr. Price was saying is we don't think he's culpable and the reason we don't think he's culpable is because he can't control himself, he can't learn from his mistakes, but that --

QUESTION: Thank you, Mr. Taylor.

Mr. Schaerr we'll hear from you

ORAL ARGUMENT OF GENE C. SCHAERR

ON BEHALF OF ALABAMA, AS AMICUS CURIAE,

SUPPORTING THE RESPONDENT

MR. SCHAERR: Mr. Chief Justice, and may it please the Court, despite the lip service that the petitioner pays to Edpa, the fundamental flaw in both of his claims is that they ignore the statute's threshold requirement and that is that the principal of federal law on which he relies be clearly established in this Court's decisions and not just arguably established.

Let's take first his challenge to the jury instruction, the first question to ask of course is what principle did this court's Penry jurisprudence clearly establish as opposed to arguably establish when the state courts made their decisions below. I submit that what Penry clearly established is summarized at page 328 of the Penry opinion in which the court said that a defendant is entitled to instructions informing the jury that it can consider and give effect to the mitigating evidence by declining to impose the death penalty.

This is how the Penry One holding was characterized in subsequent opinions of this Court including Graham and Sapple and others, and it's true that Penry One discussed some of the ways that Texas might comply with this principle but it did not clearly establish that these additional instructions either had to include a separate special issue or had to expressly tell the jury that it could answer no to a special issue even if the literal answer was yes or that it had to expressly define deliberately. The Court I submit did not attempt to micro manage Texas procedure in any of those ways and in fact as later opinions pointed out it could not have done so without creating a new rule under Teague.

Indeed the term after Penry One both Boyd and Sapple made crystal clear that Penry One had left intact the state's freedom to structure and shape the jury's consideration of mitigating evidence.

QUESTION: You would agree I take it that we would -- we were not required in order to establish a clear standard we were not required in Penry One to say the instructions have got to call for a rational process, the instructions have got to call for a process that reasonable jurors could at least intellectually follow, -- that if we found a deficiency on such points as that that you would not feel that Edpa stood in the way of granting relief here.

MR. SCHAERR: Well the application of Penry One would have to not only be incorrect or less than perfect, it would have to be unreasonable under this Court's analysis in Williams versus Taylor, and let me address that question now if I might.

QUESTION: I want to make sure we're together at least on one point. When we say that instructions are inadequate and it has to go back for better instructions, I take it it's not your position that Edpa would require us to say something like and the instructions have got to be clear, they've got to be rational, they've got to be instructions that juries can follow. I take it you would agree that at least those requirements are implicit and clearly implicit in what we hold when we say the first instructions are inadequate. Do you agree?

MR. SCHAERR: I think that's right and I think these instructions complied with those requirements at least to the extent that a reasonable jurist could conclude that they did comply. It seems to me the only real question under Edpa with regard to the jury instruction is whether that instruction was a reasonable application of this court's Penry jurisprudence.

QUESTION: If the answer is no, I wonder what happens to -- it seems to me your position has considerable implication for the authority of this Court in criminal cases. We issue mandates and you're saying that those mandates could be ignored by a state as long as the way in which the state ignores the mandate commends itself to some reasonable juror -- reasonable lawyer rather though most reasonable lawyers decide the contrary, is that what you're thinking?

MR. SCHAERR: Not at all, Justice Breyer. Obviously the state has to comply with the Court's mandate. The question is did they do so in a reasonable way, and I think --

QUESTION: What about that though? I mean I'm not asking it argumentively. I'm trying to follow through on the implication. We have a mandate, we issue it to a state, now in your view they -- they do what two or three lawyers might think was reasonable but 97 wouldn't and so what are we supposed to do?

MR. SCHAERR: Certainly the Court held in Williams versus Taylor that it's not enough to have one jurist that might conclude that it was reasonable.

QUESTION: All right then however -- you see what I'm getting at. I'm worried about the implications there for the compliance by a state with a mandate of the Supreme Court and that's what I'd like you to think through for me.

MR. SCHAERR: Sure and I agree. They have to do it in a reasonable way but I can't -- I don't think it's possible to draw a line and say if 70 percent of --

QUESTION: I don't think we know either. We haven't stated a number seven, 18, 32 we don't know either.

QUESTION: Mr. Schaerr we did say in a case that came down rather recently in the Sapple case that South Carolina just didn't get it, it didn't pay attention to our decision in Simmons. This case has something of the same feel to it.

MR. SCHAERR: Well I -- with all respect Justice Ginsburg, I don't think that's true. In fact in this case to me the key distinguishing factor between this case and Penry One is that here unlike Penry One, the trial court actually gave a very extended instruction on the subject of mitigating evidence as Mr. Taylor has discussed earlier. That was instruction number four and there was no corresponding instruction given in Penry One and so the only question -- so clearly this case is distinguishable from that and clearly the lower courts at least attempted to apply this Court's precedent in Penry One. Whether they did so reasonably is the real question of the day and I think on that point it's significant although not dispositive that of the ten state judges and the four federal judges who address this issue on the merits, not one of them concluded that the instruction was an unreasonable application of Penry One.

There was one judge in the Fifth Circuit who concluded that it was incorrect but again under Williams versus Taylor it's not enough that the application be incorrect and especially not less than perfect. And so even if it would have been better to add a fourth special issue, that doesn't make the Texas decision unreasonable especially in light of Boyd and Sapple which say that the states retain their right to structure and shape the jury's consideration of mitigating evidence.

QUESTION: Didn't those judges look at the instruction in isolation without reading it against the special issues?

MR. SCHAERR: Well I think they -- I don't think they looked at it in isolation. I think --

QUESTION: Did they refer to the special issues in their comment on the instructions?

MR. SCHAERR: I believe they did and certainly that was the entire issue throughout the --

QUESTION: The language about what they have to do to answer no, that at least ten jurors have to have a reasonable doubt as to the facts?

MR. SCHAERR: I don't recall if they focused on that specific language.

QUESTION: Isn't that fairly relevant?

MR. SCHAERR: Well it is relevant but as Boyd says this Court and the lower courts as well they look to the entire context of the trial. It's under Boyd it is clearly fair gave to look at voir dire and closing arguments and all of that, and so even if it might have been better under -- even if it might have been better to tell the jury more clearly that it could answer a special interrogatory no when it thought the answer was yes, that also doesn't make the instruction unreasonable and as we've discussed especially in light of the other circumstances of the trial.

I also think that there's no arguable problem in this case under Roberts because the problem in Roberts of course which was a plurality opinion was that there was no instruction at all that even authorized the jury to find a lesser included offense if it wanted to give a life sentence instead of a death sentence.

QUESTION: What do you think about that? The other thing more philosophically, as a prosecutor, someone on that side, if this court were to say nullification instructions are okay, might that come back to haunt you some day in other cases, indeed to bite you if you see what I'm driving at? I want to get your reaction to that as a prosecutor.

MR. SCHAERR: I think the way the word nullification was used by the Texas Court of Criminal Appeals, it was simply that the jury could in essence nullify what it might otherwise consider to be the correct answer to one of those three special interrogatories. I don't think they were saying that nullification instructions as a general matter are proper or anything like that but as used here that's what nullification means. I don't think there's any magic.

QUESTION: The word nullification instruction is almost an oxymoron, isn't it, because you think of nullification jury as refusing to follow an instruction rather than following one.

MR. SCHAERR: Right and that was the situation in Roberts, but that's not the situation here. At the end of the day the instruction at issue here was reasonable in my view, if for no other reason that it gave the jury at least one clear path to a life sentence based on the petitioner's mitigating evidence and that is all that this court's decisions clearly required.

Now finally I think it's important to remember as the Court considers the statute here that Edpa was designed to curb what Congress saw as an enormous and undue federal burden on the state's criminal justice system.

Thank you.

QUESTION: Thank you Mr. Schaerr.

Mr. Smith you have four minutes remaining.

REBUTTAL ARGUMENT OF ROBERT S. SMITH

ON BEHALF OF THE PETITIONER

MR. SMITH: Thank you.

Let me -- I'm going to try to use that time just to try to convey some information on some points that may be of interest. On the question of what a Texas court could have done my Texas colleague advises me that there was a case called McPherson in which a Texas court before the statute was amended did give a fourth special issue and that that was ultimately upheld by the Texas Court of Criminal Appeals. That had not occurred at the time of our trial but the Texas Court of Criminal Appeals did approve it. There was an escape hatch available and it was used. I do not have the citation to the McPherson case here; if there's an appropriate way to provide it we'll certainly do that.

Secondly on the question of -- I learned to say voir dire when I was in Texas and I'm trying to unlearn it, but it's one or the other voir dire or voir dire. I suggest that it is perilous to rely on voir dire of all things to undo or to cure a problem with an instruction. Mr. Taylor is quite right, that this process in Texas goes on for weeks and weeks and a lot of things get said. If you'll look at volume 22 page 1792 of the record, you will see one of the jurors, one of the jurors who actually sat being instructed by the prosecutors, you should not automatically answer these questions a certain way to achieve a punishment, you should not answer one of them no because I want him to get a life sentence. Possibly technically correct but surely in the context of what these jurors were supposed to do, likely to confuse, my point simply a lot of things get said in voir dire over a long time and it would be a mistake to say that that cured what I think is a hopelessly confusing instruction.

On the Peebles Report where Mr. Taylor made the argument that what they were really trying to show was that Penry was a psychopath, I have a very short response. The Peebles Report doesn't say that. There's nothing in the Peebles Report that says he's a psychopath. Sure they said it; everybody else said it. Peebles said pretty much what our expert said, he said he has mental retardation and anti-social conduct, but anti-social personality disorder, you won't find that in the Peebles Report. Unless there are further questions I'll submit.

QUESTION: Thank you, Mr. Smith the case is submitted.

(Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)

Attribution:

The Oyez Project

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