The reality of evolving standards and the death penalty.

Author:Edwards, Daniel
Position:Part 2

Part one of this article can be found in volume 48, number 1, January/ February/March 2014 issue of The Prosecutor magazine.


In Jones v. United States, the United States Supreme Court held that "in order for a capital sentencing scheme to pass constitutional muster, it must perform a narrowing function with respect to the class of persons eligible for the death penalty and must also ensure that capital sentencing decisions rest upon an individual inquiry." (1) It is the "statutory scheme" that must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." (2) The Colorado statute constitutionally performs this narrowing function.

Colorado in the first instance narrows the class of individuals eligible for the death penalty by the statutory definition of murder in the first degree. In the most utilized theory of first degree murder, the law requires an offender to "after deliberation and with the intent to cause the death of a person other than himself, cause the death of that person...." (3) Of the 34 jurisdictions that have the death penalty, 17 require a less culpable mental state by requiring either just an intentional or knowing state of mind for murder. (4) An intentional or knowing murder where other states could consider the death penalty would only amount to second degree murder in Colorado, a crime not eligible for death penalty consideration at all.

In examining the Georgia death penalty statute in Gregg, the United States Supreme Court indicated that the jury must be "given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision." (5) The Court pointed to the Model Penal Code in support of the position that aggravating and mitigating factors could be devised. (6) "While such standards are by necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be called capricious or arbitrary." (7) The Court in Gregg held that the Georgia statute was constitutional where the sentencer was informed of the relevant considerations in aggravation and mitigation and was provided with standards in the use of the information. (8)

The general principles that have developed from the United States Supreme Court concerning the death penalty require a sentencing scheme that will "(1) rationally narrow the class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant's record, personal characteristics, and the circumstances of the crime." (9) The Court has reserved discretion to the states in determining their sentencing procedures. (10)

Because most jurisdictions do not incorporate mitigation as part of eligibility, the many appellate cases that discuss narrowing only discuss statutory aggravating factors as the sole eligibility determinant. Citing precedent concerning other jurisdictions' death penalty statutes where aggravating factors equal eligibility has little, if any, relevance in examining the Colorado death penalty statute.

The Delaware Supreme Court was faced with the argument that there were too many statutory aggravating factors (22) making the statute constitutionally overbroad and not meeting the narrowing requirement of the constitution. The argument was rejected. (11) The Court held that the proper analysis is to look at individual statutory aggravating factors to determine whether any specific aggravator applied to every defendant or the aggravating factors were unconstitutionally vague. (12) In another case, the Court said that the question is never "whether all aggravating factors combined apply to virtually all defendants convicted of first degree murder. (13)

In Illinois, the Supreme Court held that each aggravator narrowed, and rhetorically asked: "(e)ven assuming the death penalty statute could have 'too many' aggravating factors rendering a first degree murder defendant eligible for the death penalty, how many aggravating factors are too many?" (14) The question has never been answered by any court.

In the Edward Montour case, the trial court entered an order finding that the Colorado statute constitutionally narrowed those eligible for the death penalty. (15) "Despite the defense's argument to the contrary, the Court is persuaded that Colorado's three-stage 'eligibility phase' or 'eligibility determination,' ... is synonymous with 'legislative narrowing' or 'constitutional narrowing.'" (16) "Therefore, the finding of a statutory aggravating factor, standing alone, is not sufficient to render a defendant eligible for the death penalty." (17)

The narrowing function of the Colorado statutory aggravating factors becomes evident at step three of eligibility. At step one, the prosecution must prove at least one statutory aggravating factor beyond a reasonable doubt. (18) At step two, the defense is permitted to introduce mitigation, without a standard or burden of proof, and the prosecution is permitted to introduce rebuttal to mitigation. (19) At step three, the jury considers whether mitigation does not outweigh the statutory aggravating factors from step one. (20) The jury, therefore, in its deliberation on the eligibility decision is focused only on statutory aggravating factors and mitigation. The specific aggravating factors that have been proven are considered to the exclusion of all other statutory aggravating factors. Thus, it does not matter if there are only a few aggravating factors or many aggravating factors in the statute. The jurors are not able to consider any other facts that favor a death sentence at step three. At step four, the actual sentencing decision, the defendant may present any other relevant evidence and the prosecution may present any other evidence that concerns the "nature of the crime and the character, background, and history of the defendant." (21) To say that statutory aggravating factors in Colorado do not narrow those murderers eligible for a death sentence is simply to misunderstand, or purposefully distort, the Colorado statute and the role played by aggravating factors.

Additionally, as Chief Justice Rehnquist in Buchanan v. Angelone, (22) wrote:

Petitioner initially recognizes, as he must, our cases distinguish between two different aspects of the capital sentencing process, the eligibility and the selection phase. In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances. In the selection phase, the jury determines whether to impose a death sentence on an eligible defendant. Addressing what would later be referred to as the "narrowing" requirement, the Court explained:

It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury's discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary and capricious in its imposition. (23) No court, not the United States Supreme Court nor any federal inferior court, no state court, and no Colorado court has ever found a death penalty statute to be unconstitutional based upon the number of aggravating factors in a particular statute. Courts have found that a particular aggravating factor did not, in and of itself, narrow. (24)

In Godfrey v. Georgia, the United States Supreme Court held:

A capital sentencing scheme must, in short, provide a meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not. This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates "standardless sentencing discretion." It must channel the sentencer's discretion by "clear and objective standards" that provide "specific and detailed guidance," and that "make rationally reviewable the process of imposing a sentence of death. (25) The United States Supreme Court has held that any specific aggravating factor need meet only two criteria: (1) the circumstance may not apply to every defendant convicted of murder, it must only apply to a subclass of defendants convicted of murder, and (2) the aggravating factor must not be unconstitutionally vague. (26)

In Arave v. Creech, (27) the Court considered the issue of whether one aggravating factor applied to too many murders and was, therefore, unconstitutional. The Court reiterated the fundamental principles that a capital sentencing statute must "suitably direct and limit the sentencer's discretion so as to minimize the risk of wholly arbitrary and capricious action." (28) It is the "arbitrary and capricious action" of the jury that the Court was discussing. Only if an aggravating factor applies to every defendant is the aggravating factor constitutionally infirm. (29) In Arave, (30) the Court found that while an aggravating factor "might not narrow" the class of murderers eligible for the death penalty, that "a sentencing judge reasonably could find that not all Idaho capital defendants" meet the aggravator. However, the aggravator was found to be constitutional because "some within the broad class of first-degree murderers do exhibit feeling." (31) Thus, even if the statutory aggravators in Colorado apply to 90% of all first-degree murders the statute is not unconstitutional.

Currently, an aggravating factor is any one of the 17 factors listed by the General Assembly in the statute. (32) When...

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