479 U. S. 538
January 27, 1987
Before California juries deliberated on whether or not to sentence a capital murderer to death, courts would instruct them that they “must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Albert Brown, who had raped and murdered a 15 year old girl, contended that the directive against “sympathy” violated his Eighth Amendment rights, because Supreme Court precedent had held that defendants must be allowed to present mitigating evidence, like having had a horrible and abusive childhood.
In a 5-4 decision, Chief Justice Rehnquist held that the jury instruction was Constitutional. He stressed that sympathy was just one word in a long list, and that only “mere” sympathy, without consideration of other factors, was cautioned against by the instruction. Rehnquist also pointed out that Brown had put on 13 witnesses to offer mitigated evidence, and there was little chance the jury would interpret the instruction to mean that they had to ignore all of that. O’Connor wrote a brief concurrence stating her hope that, on remand, the California courts would inquire into whether or not the jury was fully aware that it could consider mitigating evidence.
Brennan dissented, and was joined by Marshall and Stevens. After the obligatory paragraph (not joined by Stevens) explaining that the death penalty was always unconstitutional, Brennan argued that the instruction was capable of a few different meanings, and that the possibility of jury confusion should render it invalid. Then, for a few pages, he quoted various trial transcripts where prosecutors had flatly told juries to disregard all sympathy whatsoever. Finally, he contended that the instructions to the jury to consider mitigating factors were not clear either. Blackmun wrote a dissent joined by Stevens. Unlike Brennan, he thought the risk of a jury being misled by the “sympathy” instruction was minimal. But even a minimal risk, he argued, was sufficient to render the instruction unconstitutional, since it was a matter of life and death.
I side with Rehnquist. The jury instruction is clear enough, and I don’t really buy the apparent ‘sympathy = mitigating evidence’ equivalency that seems to lie at the hearts of the dissents. On a personal note, I take issue with the familiar argument that the death penalty is unfairly applied in the United States. The scripture says that “the wages of sin is death.” There’s no asterisk next to that, with the explanatory note “unless you had a rough childhood, in which case you have a right to absolution.” The thief on the cross next to Jesus did not complain that the Romans lacked sympathy, but instead admitted “we indeed are suffering justly, for we are receiving what we deserve for our deeds.” I’ll have much more to say on this subject when I get to the case of McCleskey v. Kemp.