The Supreme Court/The Supreme Court.iso/pc/ascii/1993/93_5131/93_5131.zc2

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SUPREME COURT OF THE UNITED STATES
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Nos. 93-5131 and 93-5161
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PAUL PALALAUA TUILAEPA, PETITIONER
93-5131                    v.
CALIFORNIA

WILLIAM ARNOLD PROCTOR, PETITIONER
93-5161                    v.
CALIFORNIA
on writs of certiorari to the supreme court of
california
[June 30, 1994]

  Justice Stevens, with whom Justice Ginsburg joins,
concurring in the judgment.
    As these cases come to us they present a question
that the Court answered in Zant v. Stephens, 462 U. S.
862 (1983).  California, like Georgia, has provided a
procedure for determining whether a defendant found
guilty of murder is eligible for the death penalty.
Petitioners have not challenged the constitutionality of
that procedure or its application in these cases.  Accord-
ingly, our decision rests on the same assumption that we
made in Zant, namely that the statutory procedure for
determining eligibility adequately confines the class of
persons eligible for the death penalty to a narrow
category in which there is a special justification for -the
imposition of a more severe sentence on the defendant
compared to others found guilty of murder.-  Id., at 877.
  The question is whether, in addition to adequately
narrowing the class of death-eligible defendants, the
State must channel the jury's sentencing discretion when
it is deciding whether to impose the death sentence on
an eligible defendant by requiring the trial judge to
characterize relevant sentencing factors as aggravating
or mitigating.  In Zant we held that the incorrect
characterization of a relevant factor as an aggravating
factor did not prejudice the defendant; it follows, I
believe, that the failure to characterize factors such as
the age of the defendant or the circumstances of the
crime as either aggravating or mitigating is also unob-
jectionable.  Indeed, I am persuaded that references to
such potentially ambiguous, but clearly relevant, factors
actually reduces the risk of arbitrary capital sentencing.
  Prior to the Court's decision in Furman v. Georgia,
408 U. S. 238 (1972), in a number of States the death
penalty was authorized not only for all first-degree
murders, but for less serious offenses such as rape,
armed robbery, and kidnaping as well.  Moreover, juries
had virtually unbridled discretion in determining
whether a human life should be taken or spared.  The
risk of arbitrary and capricious sentencing, specifically
including the danger that racial prejudice would deter-
mine the fate of the defendant, persuaded a majority of
the Court in Furman that such capital sentencing
schemes were unconstitutional.  The two principal
protections against such arbitrary sentencing that have
been endorsed in our subsequent jurisprudence focus,
respectively, on the eligibility determination and the
actual sentencing decision.
  First, as Chief Justice Rehnquist writing for the
Court in Lowenfield v. Phelps, 484 U. S. 231 (1988)
succinctly stated: -To pass constitutional muster, a
capital sentencing scheme 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.'- Id., at 244 (quoting Zant v. Stephens,
462 U. S., at 877).  When only a narrow sub-class of
murderers can be subjected to the death penalty, the
risk of cruel and unusual punishment-either because it
is disproportionate to the severity of the offense or
because its imposition may be influenced by unaccept-
able factors-is diminished.  See McCleskey v. Kemp, 481
U. S. 279, 367 (1987) (Stevens, J., dissenting).  Because
those risks can never be entirely eliminated, however,
the Court has identified an additional safeguard to
protect death-eligible defendants from the arbitrary
imposition of the extreme penalty.
  In Lockett v. Ohio, 438 U. S. 586, 602-605 (1978),
then-Chief Justice Burger emphasized the importance of
requiring the jury to make an individualized determina-
tion on the basis of the character of the individual and
the circumstances of the crime. Insisting that the jury
have an opportunity to consider all evidence relevant to
a fair sentencing decision reduces the danger that they
might otherwise rely on an irrelevant and improper
consideration such as the race of the defendant.  In
Zant, even though the trial judge had incorrectly
characterized the defendant's prior history of -assaultive
offenses- as a statutory aggravating circumstance, we
found no constitutional error because the evidence
supporting that characterization was relevant and
admissible. 462 U. S., at 887-889.  We made it clear,
however, that it would be error for a State to attach the
-aggravating- label to, or otherwise authorize the jury to
draw adverse inferences from, -factors that are constitu-
tionally impermissible or totally irrelevant to the
sentencing process, such as for example the race,
religion, or political affiliation of the defendant.-  Id., at
885.
  The three penalty-phase factors in California's statute
that are challenged in this case do not violate that
command.  Matters such as the age of the defendant at
the time of the crime, the circumstances of the crime,
and the presence or absence of force or violence are, in
my opinion, relevant to an informed, individualized
sentencing decision.  Under Lockett, the defendant has
a right to have the sentencer consider favorable evidence
on each of these subjects, and under Zant it is permissi-
ble for the prosecutor to adduce unfavorable evidence on
the same subjects. If, as we held in Zant, it is not
constitutional error for the trial judge to place an
incorrect label on the prosecutor's evidence, it necessar-
ily follows that refusing to characterize ambiguous
evidence as mitigating or aggravating is also constitu-
tionally permissible.  Indeed, as I have indicated, I think
the identification of additional factors that are relevant
to the sentencing decision reduces the danger that a
juror may vote in favor of the death penalty because he
or she harbors a prejudice against a class of which the
defendant is a member.
  Accordingly, given the assumption (unchallenged by
these petitioners) that California has a statutory
-scheme- that complies with the narrowing requirement
defined in Lowenfield v. Phelps, 484 U. S., at 244, I
conclude that the sentencing factors at issue in these
cases are consistent with the defendant's constitutional
entitlement to an individualized -determination that
death is the appropriate punishment in a specific case.-
Woodson v. North Carolina, 428 U. S. 280, 305 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.).