Tomorrow the Court will hear arguments in Brown v. Sanders, No. 04-980. This case presents two issues. First, whether California’s death penalty law makes it a “weighing” state, which would require a state court to determine whether a jury’s consideration of an invalid “special circumstance” in selecting a death penalty was harmless beyond a reasonable doubt. And, second, if it is a weighing state, whether the California Supreme Court had to use the terms “harmless error” or “reasonable doubt” in determining that there was no reasonable possibility that consideration of an invalid “special circumstance” affected the jury’s decision to sentence Sanders to death.
Jane N. Kirkland, Deputy Attorney General of California, will argue for the petitioner. Nina Rivkind will argue on behalf of the respondent.
The Ninth Circuit opinion can be found here.
The petitioner’s brief can be found here.
Petitioner’s reply brief can be found here.
The brief for the respondent can be found here.
Before getting into the facts and arguments of this case, a bit of background on death penalty procedure may be helpful. To pass constitutional muster, a death penalty sentencing process must perform two functions. First, a state must apply rational criteria to narrow the class of offenders who are eligible for the death penalty. Once a defendant is determined to be death-eligible, the sentence-selection process must allow for individualized consideration that accounts for all relevant mitigating evidence.
“Weighing” and “non-weighing” states make the sentence-selection decision in different ways. In weighing states, the sentencer first determines that a defendant is eligible for the death penalty by finding the existence of certain statutory aggravating factors. The sentencer then weighs the aggravating factors against any mitigating factors to decide whether the death penalty is appropriate. In non-weighing states, the aggravating factors play no particular role in the sentence-selection phase, and the sentencer is not directed to weigh a specific list of aggravating factors against mitigating factors.
The distinction between weighing and non-weighing systems matters when a jury has considered an invalid aggravating factor during the sentence-selection process. In a weighing state, the consideration of an invalid aggravating factor can place improper weight on “death’s side of the scale.” As a result, the Supreme Court established in Clemons v. Mississippi that a court in a weighing state can only uphold a death sentence that was based on consideration of an invalid aggravating factor if the court either: (1) independently reweighs the valid aggravating and mitigating circumstances, or (2) determines that consideration of the invalid factor was “harmless beyond a reasonable doubt.” By contrast, the Court held in Zant v. Stephens that because aggravating factors matter in determining death-penalty eligibility but play no particular role in sentence selection in a non-weighing state, as long as there remains at least one valid aggravating factor making the defendant death-eligible, the presence of an invalid factor does not unduly affect the sentence-selection process.
The respondent in this case, Ronald Sanders, was convicted of robbery, burglary, attempted murder, and first-degree murder by a California jury in January 1982. The jury found the presence of four aggravating factors, called “special circumstances” under California law, at least one of which is required for a defendant to be eligible for the death penalty in that state. At the penalty phase, where Sanders declined to present any mitigating evidence on his behalf, the jury sentenced Sanders to death.
On Sanders’s appeal, the California Supreme Court determined that two of the special circumstances in Sanders’s case were invalid. The court did not expressly apply the procedure articulated in Clemons for evaluating sentences based on invalid factors in weighing states. Instead, citing Zant, it upheld Sanders’s death sentence after concluding that there was little chance that Sanders was prejudiced by consideration of the invalid factors. After exhausting state remedies, Sanders sought federal habeas relief, which the district court denied.
On appeal, the Ninth Circuit granted Sanders relief as to his death sentence. First, the court found that California was a weighing state because California law specifies that a sentencing jury shall impose death if it concludes, after consideration of eleven statutorily defined sentencing factors, that the presence of aggravating factors outweighs any mitigating factors. The court reasoned that because the jury “must consider the defined list of aggravating factors, and may not consider other aggravating factors,” “there is a real risk that the jury’s decision to impose the death penalty . . . may have turned on the weight it gave to an invalid aggravating factor.”
The court of appeals further concluded that, by neither remanding for resentencing, reweighing the sentencing factors themselves, nor finding that the error was “harmless beyond a reasonable doubt,” the California Supreme Court “did not follow the procedures constitutionally mandated for appellate review” in “a weighing state.” Rather, the California court appeared to have erroneously applied Zant‘s test for non-weighing states, upholding Sanders’s death sentence because there remained two valid special circumstances making him death-eligible.
Undertaking its own harmless-error analysis, the court of appeals considered whether the invalid circumstances could have had a “substantial and injurious effect” on the jury’s verdict. The court concluded that because this was “a close case,” the jury’s consideration of the invalid special circumstances may well have substantially affected its decision to sentence Sanders to death. The state filed a petition for certiorari, which the Supreme Court granted.
Petitioner’s primary argument is that California is not a weighing state. Petitioner argues that in most weighing states the aggravating factors that are used to determine eligibility for the death penalty are the same factors that are weighed in selecting a sentence, which is not the case under the California system. Respondent attacks this position by pointing to weighing jurisdictions where the aggravating factors considered at the sentence-selection phase are not limited to the same factors used at the eligibility phase. Respondent contends that the hallmark of a weighing scheme is simply that aggravating factors play a specific role in sentence selection – i.e., the sentencer must weigh or consider aggravating factors against mitigating factors in choosing a sentence. Because the California procedure mandates that aggravating and mitigating factors, including special circumstances, are to be weighed against each other in sentence selection, California is a weighing state.
Petitioner insists that, although the eleven factors that a California jury must consider include “the existence of any special circumstances,” special circumstances are not pivotal in sentence selection. Rather, because the eleven factors direct the jury to consider the overall circumstances of the offense and offender as a whole, special circumstances do not play a central role and their importance is “entirely diluted as compared to the ‘weighing states.'” Even if a special circumstance is invalid, the jury can still properly consider the underlying facts upon which the circumstance was based. Respondent, on the other hand, takes the position that labeling certain facts as “special circumstances” makes a difference, and argues that a jury’s consideration of the overall facts of the crime does not undermine the key role of weighing aggravation against mitigation in choosing a sentence.
Petitioner also argues that the California statute’s direction that jurors apply the death sentence if aggravating factors “outweigh” mitigating factors does not make California a weighing state because this word choice simply describes the deliberative process that all juries undertake in making a sentencing decision in both weighing and non-weighing states alike. Respondent contends that the jury instructions and prosecutor’s argument in Sanders’s case clearly demonstrate the importance of weighing special circumstances in sentence selection – jurors were expressly instructed to consider the existence of special circumstances and to weigh aggravating and mitigating factors in choosing a sentence.
Petitioner and respondent both argue that California case law is on their side. Petitioner contends that the California Supreme Court has repeatedly concluded that California is a non-weighing state. Respondent argues that California case law recognizes the importance of weighing aggravating and mitigating factors in sentence selection, and respondent further points to various state briefs that have implied that California is a weighing state.
Finally, petitioner argues that, even if California is a weighing state, the criteria used by the California Supreme Court to evaluate Sanders’s sentencing process were equivalent to the requisite “harmless-beyond-a-reasonable-doubt” standard even if the state court did not use the specific terms “harmless error” or “reasonable doubt.” Respondent asserts that the test applied by the state court erroneously placed the burden of proof on the defendant rather than on the state. However, respondent contends, the Ninth Circuit did not even have to evaluate the state court’s harmless-error test. Rather, its own conclusion that the error was prejudicial was sufficient, correct, and remains unchallenged by the state.
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