Eighth Amendment - capital sentencing instructions.

• Author: Brown, J. Michael
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Johnson v. Texas,(1) the United States Supreme Court held that the Texas capital sentencing statute did not violate the Eighth Amendment rights of petitioner Dorsie Lee Johnson, Jr.(2) The Court ruled that the trial court was not constitutionally required to instruct the jury to consider mitigating aspects of Johnson's youth independent of the statute's special issue framework.(3) According to the Court, the jury was able to adequately consider all of the mitigating evidence proferred by johnson, including evidence of his youth, through an assessment of Johnson's future dangerousness.(4)

   This Note argues that the Court, by failing to recognize the importance of Johnson's moral culpability as a factor in sentencing, incorrectly held that the Texas capital sentencing statute was constitutional as applied to Johnson. Consistent with Justice O'Connor's dissenting opinion, this Note asserts that the Eighth Amendment requires the level of punishment for a crime to be directly proportional to a defendant's moral culpability. Because the Texas sentencing statute precluded the jury from giving "independent mitigating weight" to Johnson's youth, this Note argues that the statute failed to meet the constitutional requirement of proportional punishment. In addition, this Note argues that under the Eighth Amendment, the jury must be able to consider fully all of a defendant's proferred mitigating evidence as it relates to his moral culpability.

2. BACKGROUND

   The Eighth Amendment to the Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."(5) The Court's first significant interpretation of the Eighth Amendment's role in capital sentencing procedure appeared in Furman v. Georgia.(6) In Furman, the Court held that a system which allowed unconstrained jury discretion at the sentencing phase of a capital trial violated the Eighth Amendment's prohibition against "cruel and unusual punishment."(7) To protect against the risk of arbitrary and capricious death penalty sentences, the Court concluded that the Eighth Amendment requires states to channel the discretion of sentencing juries through appropriate statutory schemes.(8)

   In response to Furman, some states adopted mandatory statutory sentencing schemes to reduce the risk of arbitrary and capricious decision making.(9) Although mandatory sentencing produced uniformity in the capital sentencing process, systems that prevented the sentencer from considering the character of the defendant and the nature of his crime remained unjust. In two 1976 cases, the Court recognized that the "fundamental respect for humanity underlying the Eighth Amendment" required sentencing statutes to follow another principle that conflicted with the principle stated in Furman.(10) The Court stated that "consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death."(11) Since the mandatory sentencing statutes in question did not allow for the consideration of mitigating evidence, the Court determined that both statutes constituted "cruel and unusual punishment" within the scope of the Eighth Amendment.(12)

   In 1978, the Supreme Court again confronted the conflict between the Eighth Amendment's requirement of uniformity in a capital sentencing scheme and the need for a sentencer to consider the individual nature of a defendant and his crime. In Lockett v. Ohio,(13) the defendant claimed "that her death sentence [was] invalid because the statute under which it was imposed did not permit the sentencing judge to consider, as mitigating factors, her character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime."(14) In response to Lockett's contention, the Court acknowledged that the cases following Furman had not provided states with clear and adequate guidelines for constructing capital sentencing statutes.(15) The Court refined the Eighth Amendment's requirements in an attempt to eliminate the apparent tension between the principle that states must channel jury discretion and the notion that a sentencer must consider both the particularized characteristics of the defendant and the particularized nature of the crime.(16)

   Given the severity of the choice between life and death, the Court concluded that "[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases."(17) To ensure that a defendant is not denied this "degree of respect," the Court placed a great deal of weight on the sentencer's ability to consider the individualized nature of the defendant:

   [W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.(18)

   Since the sentencing statute created the risk that the death penalty would be imposed despite mitigating factors that may have called for a less severe sentence, the Ohio statute was incompatible with the Eighth Amendment.(19)

   Responding to the Supreme Court's evolving capital punishment jurisprudence, Texas adopted a unique capital sentencing scheme. The scheme contained two basic components. First, the scheme limited the application of capital punishment to intentional and knowing murders committed in six situations.(20) Second, the statute instructed the sentencer to answer three special issues to determine whether the defendant should be sentenced to death.(21) If the sentencer answered the special issues in the affirmative, then the court had no choice but to impose the death penalty.(22)

   The Supreme Court first considered the constitutionality of this Texas capital sentencing statute in Jurek v. Texas.(23) In Jurek, the defendant was convicted for the murder of a ten-year-old girl committed during the course of a kidnapping and attempted rape.(24) Since the offense was one of the specified capital crimes listed in Texas' sentencing statute, the trial court instructed the jury to determine the defendant's punishment based solely on the answers to the two relevant special issues.(25) A unanimous jury answered both questions in the affirmative and, accordingly, the judge sentenced the defendant to death.(26)

   The defendant appealed all the way to the Supreme Court, arguing that the post-Furman changes in Texas' sentencing statute were "no more than cosmetic in nature and ha[d] in fact not eliminated the arbitrariness and caprice of the system held in Furman to violate the Eighth and Fourteenth Amendments."(27) Analyzing the statute in light of the competing principles expressed in Furman and the mandatory sentencing cases,(28) the Court reasoned that the "constitutionality of the Texas procedures turns on whether the enumerated questions [special issues] allow consideration of particularized mitigating factors."(29) The Court examined the Texas Court of Criminal Appeals' interpretation of the second special issue to resolve this essential question.(30) The Texas Court of Criminal Appeals had "indicated that it will interpret the second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show."(31) Based on this broad interpretation of the second issue, the Supreme Court concluded that "the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death."(32) As a result, the Texas sentencing statute did not violate the requirements of the Eighth Amendment.(33)

   Although Jurek resolved the question of the facial constitutionality of Texas' capital sentencing statute, the principles expressed in Lockett v. Ohio(34) two years later prompted several new challenges to the Texas death penalty system.(35) The new challenges did not contest the general constitutionality of the Texas statute; rather, they focused on a sentencer's ability to fully consider particular types of mitigating evidence under the special issues format.

   In Franklin v. Lynaugh,(36) a convicted defendant claimed that the special issue instructions required by the Texas statute "did not allow the jury to give adequate weight to the mitigating evidence of [his] good behavior while in prison."(37) The defendant argued that the mitigating evidence he presented to the jury had significance, as a reflection on his character, independent of its relevance to the special issues.(38) Rejecting the defendant's assertion, the Court concluded that "the jury was surely free to weigh and evaluate petitioner's disciplinary record as it bore on his |character' . . . as measured by his likely future behavior."(39) Since the jury was able to weigh the mitigating evidence in relation to the second special issue, there was no constitutional requirement that the jury should have been able "to cast an |independent' vote against the death penalty" apart from its answers to the special issues.(40)

   By reaffirming the constitutionality of Texas' death penalty statute, the Court indicated that Lockett's emphasis on mitigating evidence did not suggest that Jurek should be overruled or modified. The Court stated that "we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused; we have never concluded that States cannot channel jury discretion in capital sentencing in an effort to achieve a more rational and equitable administration of the death penalty."(41) Because the Texas special issue...