One of the most basic principles of modern death penalty jurisprudence is that "[sentencing] juries be carefully and adequately guided in their deliberations." Gregg v. Georgia, 428 U.S. 153, 193 (1976). This is, in essence, the core holding of Furman v. Georgia, 408 U.S. 238 (1972): "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Gregg, 428 U.S. at 189.
A. Vague and Overbroad Aggravating Circumstances -
For the most part, the principle of guided discretion is relevant to assessing the validity of statutory aggravating circumstances. Aggravating factors, which are essential to the constitutionality of any death penalty scheme,1 must "genuinely narrow the class of death-eligible persons" in a way that reasonably "justifies the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 (1983). In other words--and on a more practical level--the death penalty is not permitted for any and all murders; thus, the most common aggravating circumstances involve murders committed during the commission of another felony, i.e., burglary, armed robbery, rape, etc. See Gregg, 428 U.S. at 101-02. Furthermore, both on their face, and as applied, aggravating circumstances must permit the sentencer to make a "principled distinction between those who deserve the death penalty and those who do not." Lewis v. Jeffers, 497 U.S. 764, 774 (1990); see also Richmond v. Lewis, 506 U.S.40, 46 (1992) ("a statutory aggravating factor is unconstitutionally vague if it fails to furnish principled guidance for the choice between death and a lesser penalty"); Clemons v. Mississippi, 494 U.S. 738, 758 (1990) ("invalid aggravating circumstance provided "no principled way to distinguish the case in which the death penalty is imposed, from the many cases in which it was not ").2
In Maynard v. Cartwright, 486 U.S. 356 (1988), a unanimous United States Supreme Court set out the legal principles which control claims of this nature. In addressing the validity of a death sentence based solely on the statutory aggravating circumstance that the murder was "especially heinous, atrocious and cruel,"3 the Court reasoned that an Eighth Amendment vagueness challenge to an aggravating factor in a capital case may not be analyzed under the familiar "as-applied" approach generally employed in due process vagueness challenges to criminal statutes. 486 U.S. at 361.
The Maynard Court emphasized that an Eighth Amendment challenge to a statutory aggravating circumstance requires a wholly different type of analysis. As a practical matter, such a challenge requires that reviewing courts evaluate the challenged aggravating circumstance on its face, entirely apart from the facts of the particular case in which it was applied. The reason for this is that an overbroad statutory aggravating circumstance vests in sentencing courts the sort of "open-ended discretion" to impose the death penalty which the Supreme Court condemned in Furman, and where a death sentence is imposed under such a regime of unbridled discretion, the state may not save the sentence by demonstrating that the result would have been the same even if the sentencer's discretion had been properly narrowed and guided. Maynard, 486 U.S. at 361-363.
However, even if a statutory aggravating circumstance does not, on its face, provide meaningful guidance to a capital sentencing authority, such an aggravating circumstance can nevertheless support a death sentence if the state courts have narrowed its scope to a constitutionally sufficient degree and if such a narrowing construction actually guided the sentencer in the case under review. Godfrey v. Georgia, 446 U.S. 420 (1980); see also Walton v. Arizona, 497 U.S. 639 (1990) (recognizing authority of state supreme court to supply limiting definition of facially overbroad or vague aggravating circumstance), overruled in part on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). In Arave v. Creech, 507 U.S. 463 (1993), the Court held that the Idaho Supreme Court's limiting instruction of it's "utter disregard for human life" aggravating circumstance --i.e., that "the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for human life, i.e., the cold-blooded pitiless slayer" -- passed Eighth Amendment muster. The limiting instruction was satisfactory because it defined a "state of mind that it is ascertainable from surrounding facts". Id. at 474. Because some murderers do exhibit feeling, the Court also determined that the aggravating circumstance genuinely narrowed the class of persons eligible for the death penalty as required by Zant v. Stephens, 462 U.S. 862 (1983). Id.4
B. Other Challenges to Aggravating Circumstances -
A number of other challenges to statutory and non-statutory aggravating circumstances have met with mixed success. A quick review of some which have been successful, as well as those that have failed, provides some insight into the limits of guided discretion.
The Court has held that aggravating circumstances may not encompass rights guaranteed to those facing criminal prosecutions. For example, the defendant's "lack of remorse" may not be treated as an aggravating factor because such a circumstance infringes upon a defendant's right not to testify. See Zant, 462 U.S. at 885. He may have remained silent, as the Fifth and Fourteenth Amendments allow him to do without adverse consequences, and his silence converted by a prosecutor into an expression of lack of remorse.5 Similarly, the Court held in Dawson v. Delaware, 503 U.S. 159 (1992), that a defendant's abstract religious beliefs--in Dawson's case his membership in a prison gang similar to the Arayan Nation--may not be used in aggravation of punishment.
The Court has also recognized that aggravating circumstances cannot encompass factors "that actually should militate in favor of a lesser penalty, such as perhaps the defendant's mental illness." Zant v. Stephens, 462 U.S. at 885. Consider, for example, the case in which the defendant's capital crime is, in part, a function of severe mental illness. This was in part the driving force behind the Court's decision in Penry v. Lynaugh, 492 U.S. 302 (1989), overruled in part on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002). The former Texas special issues required a trial judge to sentence a defendant to death if the jury answered the following two "special issues" affirmatively: did the defendant commit the act "deliberately?"; and, is the defendant likely to be dangerous in the future? A sharply divided Court held that this limited framework created the risk that some types of evidence which should be mitigating, e.g., a defendant's paranoid schizophrenia, could actually result in a death sentence because, in the Texas system, the evidence supported an affirmative answer to the future dangerousness special issue.
Nor can aggravating circumstances be based upon evidence that is inadmissible under state law or the federal constitution, or that is "materially inaccurate or misleading." Zant v. Stephens, 462 U.S. at 887 & nn.23, 24. The clearest application of this principle was Johnson v. Mississippi, 486 U.S. 578 (1988). In Johnson, the Court held that Johnson's death sentence, which was based in part on a prior conviction vacated after his Mississippi capital trial, violated the Eighth Amendment. Mr. Johnson was sentenced to death after a jury found three aggravating circumstances outweighed the mitigating factors. One of the aggravators (that Johnson had been previously convicted of a felony involving the use or threat of violence to another person) was supported solely by a 1963 New York conviction of second degree assault with intent to commit first degree rape.
After his Mississippi conviction, Johnson successfully challenged the 1963 assault conviction in the New York courts on the basis that he was not informed of his right to appeal. See People v. Johnson, 506 N.E.2d 1177 (N.Y. 1987). Johnson then sought post conviction relief from the Mississippi Supreme Court, which was denied. Subsequently, the United States Supreme Court granted certiorari to determine whether the reversal of the 1963 conviction affected the validity of the death sentence. The Supreme Court concluded that since the 1963 conviction was ultimately reversed, evidence regarding it was entirely irrelevant to the Mississippi jury's sentencing decision. Therefore, because the jury "was allowed to consider evidence that ha[d] been revealed to be materially inaccurate," 486 U.S. at 590, Johnson's death sentence violated the Eighth Amendment.6
1 The state is not, however, limited at the sentencing phase to presenting evidence relevant to statutory aggravating circumstances. States may (but do not have to) permit the sentencer to consider non-statutory aggravating circumstances. Barclay v. Florida, 463 U.S. 939 (1983). However, for the defendant to be death-eligible, the state must demonstrate the existence of a statutory aggravating circumstance. Sawyer v. Whitley, 505 U.S. 333 (1992).
2 The Court has held that a state may conduct the required "narrowing function" at either the guilt-or-innocence phase of the proceedings (e.g., through its definition of capital murder) or at the sentencing phase with the creation of aggravating circumstances. See Lowenfield v. Phelps, 484 U.S. 231 (1988).
3 Many of the aggravating circumstances invalidated by the Court have involved similar type factors. See, e.g., Richmond v. Lewis, 506 U.S. 40 (1992) (Arizona's "heinous, cruel or depraved" aggravating circumstance did not satisfy Eighth Amendment); Shell v. Mississippi, 498 U.S. 1 (1990) (summary reversal) (Mississippi's "especially heinous, atrocious or cruel" aggravating factor was not constitutionally adequate); Godfrey v. Georgia, 446 U.S. 420 (1980) (aggravating circumstance that offense was "outrageously vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim" was unconstitutionally overbroad and vague).
4 See also Tuilaepa v. California, 512 U.S. 967 (1994) (Court concluded that California death penalty special circumstances which require sentencer to consider circumstances of the crime, defendant's prior criminal history and defendant's age were not unconstitutionally vague even though jury was not told whether presence or absence of these circumstances was aggravating or mitigating).
5 Similarly, the defendant's assertion of his innocence and insistence upon a trial may be turned by the prosecution into an aggravating circumstance focusing upon the defendant's "lack of cooperation" or, in extreme situations, "obstruction" of justice. See, e.g., State v. Cockerham, 365 S.E.2d 22 (S.C. 1988).
6 But see Poland v. Arizona, 476 U.S. 147 (1986) (Court held that jury's failure to find aggravating circumstance at first trial did not preclude state from relying on aggravating circumstance at resentencing proceeding).