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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 Blackmun, dissenting.
  Adhering to my view that the death penalty cannot be
imposed fairly within the constraints of our Constitution,
see Callins v. Collins, 510 U. S. ___, ___ (1994), I would
vacate petitioners' death sentences.  Even if I did not
hold this view, I would find that the three challenged
factors do not withstand a meaningful vagueness
analysis because -as a practical matter [they] fail to
guide the sentencer's discretion.-  Stringer v. Black, 503
U. S. ___, ___ (1992).

                      I

                      A
  The California capital punishment scheme does more
than simply direct the sentencing jurors' attention to
certain subject matters.  It lists 11 factors and author-
izes the jury to treat any of them as aggravating circum-
stances to be placed on death's side of the scale.  Jurors
are instructed that they -shall impose a death sentence
if [they] conclude that the aggravating circumstances
outweigh the mitigating circumstances.-  Cal. Penal
Code 190.3 (West 1988).  Despite the critical-even
decisive-role these factors play in the determination of
who actually receives the death penalty, jurors are given
no guidance in how to consider them.  We have stated:
-A vague aggravating factor used in the weighing
process . . . creates the risk that the jury will treat the
defendant as more deserving than he might otherwise be
by relying upon the existence of an illusory circum-
stance.-  Stringer, 503 U. S., at ___ (emphasis added).
  The majority introduces a novel distinction between
-propositional" and -nonpropositional" aggravating
circumstances.  Ante, at 7.  The majority acknowledges
that the -distinction between the two is not always
clear," ante, at 7; I find it largely illusory.  The Court
suggests, but does not make explicit, that propositional
factors are those that -require a yes or a no answer to
a specific question," while nonpropositional factors are
those that -only poin[t] the sentencer to a subject
matter."  Ibid.  Presumably, then, asking the jury
whether the whether -the murder was especially hei-
nous, atrocious, or cruel," would be a propositional
aggravator, while directing the sentencer to -the pres-
ence of absence of any especial heinousness, atrocity, or
cruelty" would be a nonpropositional factor.  I am at a
loss to see how the mere rephrasing does anything more
to channel or guide jury discretion.  Nor does this
propositional/nonpropositional distinction appear to play
any role in the Court's decision.  The Court nowhere
discloses specifically where the line is drawn, on which
side of it the three challenged factors fall, and what
relevance, if any, this distinction should have to the
Court's future vagueness analysis.

   The more relevant distinction is not how an aggra-
vating factor is presented, but what the sentencer is told
to do with it.  Where, as in Georgia, -aggravating factors
as such have no specific function in the jury's decision
whether a defendant who has been found to be eligible
for the death penalty should receive it under all the
circumstances of the case," Stringer, ___ U. S., at ___,
we have not subjected aggravating circumstances to a
vagueness analysis.  See Zant v. Stephens, 462 U. S.
863, 873-874 (1983).  In California, by contrast, where
the sentencer is instructed to weigh the aggravating and
mitigating circumstances, a vague aggravator creates the
risk of an arbitrary thumb on death's side of the scale,
so we analyze aggravators for clarity, objectivity, and
principled guidance.  See Maynard v. Cartwright, 486
U. S. 356 (1988); Godfrey v. Georgia, 446 U. S. 420
(1980); see also Pensinger v. California, ___ U. S. ___
(1991) (O'Connor, J., dissenting from denial of certiora-
ri) (observing that California, like Mississippi, -requires
its juries to weigh aggravating and mitigating circum-
stances"); Stringer, supra, at ___ (difference between
-nonweighing" states like Georgia and -weighing" states
like California is -not one of `semantics'") (citation
omitted).
  Each of the challenged California factors -leave[s] the
sentencer without sufficient guidance for determining the
presence or absence of the factor."  Espinosa v. Florida,
505 U. S. ___ (1992).  Each of of the three-circum-
stances of the crime, age, and prior criminal activity-
has been exploited to convince jurors that that just
about anything is aggravating.
  Prosecutors have argued, and jurors are free to find,
that -circumstances of the crime- constitutes an aggra-
vating factor because the defendant killed the victim for
some purportedly aggravating motive, such as money,
or because the defendant killed the victim for no motive
at all; because the defendant killed in cold blood, or in
hot blood; because the defendant attempted to conceal
his crime, or made no attempt to conceal it; because
the defendant made the victim endure the terror of
anticipating a violent death, or because the defend-
ant killed without any warning; and because the
defendant had a prior relationship with the victim, or
because the victim was a complete stranger.  Simi-
larly, prosecutors have argued, and juries are free to
find, that the age of the victim was an aggravating
circumstance because the victim was a child, an adoles-
cent, a young adult, in the prime of life, or elderly; or
that the method of killing was aggravating, because the
victim was strangled, bludgeoned, shot, stabbed, or
consumed by fire; or that the location of the killing
was an aggravating factor, because the victim was killed
in her own home, in a public bar, in a city park, or in
a remote location.  In short, because neither the Cali-
fornia Legislature nor the California courts ever have
articulated a limiting construction of this term, prosecu-
tors have been permitted to use the -circumstances of
the crime- as an aggravating factor to embrace the
entire spectrum of facts present in virtually every
homicide-something this Court condemned in Godfrey
v. Georgia, 446 U. S. 420 (1980).  See Maynard v.
Cartwright, 486 U. S., at 363 (the Court -plainly rejected
the submission that a particular set of facts surrounding
a murder, however shocking they might be, were enough
in themselves, and without some narrowing principle to
apply to those facts, to warrant the imposition of the
death penalty").
  The defendant's age as a factor, applied inconsistently
and erratically, similarly fails to channel the jurors'
discretion.  In practice, prosecutors and trial judges have
applied this factor to defendants of virtually every age:
in their teens, twenties, thirties, forties, and fifties at
the time of the crime.  Far from applying any narrow-
ing construction, the California Supreme Court has
described age as a -metonym for any age-related matter
suggested by the evidence or by common experience or
morality that might reasonably inform the choice of
penalty.-  People v. Lucky, 45 Cal. 3d 259, 302, 753 P.
2d 1052, 1080 (1988), cert. denied, 488 U. S. 1034
(1989).
  Nor do jurors find meaningful guidance from -the
presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or
violence.-   Although the California Supreme Court has
held that -criminal- is -limited to conduct that violates
a penal statute,- People v. Wright, 52 Cal. 3d 367, 425,
802 P. 2d 221, 259 (1990) (emphasis in original), and
that -force or violence- excludes violence to property,
People v. Boyd, 38 Cal. 3d 762, 700 P. 2d 782 (1985),
that court has not required such an instruction, and
petitioner Tuilaepa's jurors were not so instructed.  This
left the prosecution free to introduce evidence of -trivial
incidents of misconduct and ill temper,- People v. Boyd,
38 Cal. 3d, at 774, 700 P. 2d, at 791, and left the jury
free to find an aggravator on that basis.
  No less a danger is that jurors-or even judges-will
treat the mere absence of a mitigator as an aggravator,
transforming a neutral or factually irrelevant factor into
an illusory aggravator.  Although the California
Supreme Court has ruled that certain of the factors can
serve only as mitigators, it has not required that the
jury be so instructed.  See, e.g., People v. Raley, 2 Cal.
4th 870, 919, 830 P. 2d 712, 744-745 (1992), cert.
denied, ___ U. S. ___ (1993).  Nor has that court
restricted jury instructions to those aggravating factors
that are factually relevant to the case.  Clearly, some
of the mitigating circumstances are so unusual that
treating their absence as an aggravating circumstance
would make them applicable to virtually all murderers.
See People v. Davenport, 41 Cal. 3d 247, 289, 710 P. 2d
841, 888 (1985) (most murder cases present the absence
of the mitigating circumstances of moral justification and
victim participation).  An aggravating factor that exists
in nearly every capital case fails to fulfill its purpose of
guiding the jury in distinguishing -those who deserve
capital punishment from those who do not.-  Arave v.
Creech, 507 U. S. ___, ___ (1993).  Moreover, a process
creating the risk that the absence of mitigation will
count as aggravation artificially inflates the number of
aggravating factors the jury weighs, -creat[ing] the
possibility not only of randomness but of bias in favor of
death.-  Ibid.
  In short, open-ended factors and a lack of guidance to
regularize the jurors' application of these factors create
a system in which, as a practical matter, improper
arguments can be made in the courtroom and credited
in the jury room.  I am at a loss to see how these
challenged factors furnish the -`clear and objective
standards' that provide `specific and detailed guidance,'
and that `make rationally reviewable the process for
imposing a sentence of death.'-  Walton v. Arizona, 497
U. S. 639, 651 (1990) (Scalia, J., concurring in part and
dissenting in part), quoting Godfrey v. Georgia, 446
U. S. 420, 428 (1980) (footnotes omitted).

                      B
  One of the greatest evils of leaving jurors with largely
unguided discretion is the risk that this discretion will
be exercised on the basis of constitutionally impermissi-
ble considerations--primary among them, race.  Racial
prejudice is -the paradigmatic capricious and irrational
sentencing factor.-  Graham v. Connor, 506 U. S. ___,
___ (1993) (Thomas, J., concurring).  In part to diminish
the danger that a sentencer will -attach[] the
`aggravating' label to factors that are constitutionally
impermissible or totally irrelevant to the sentencing
process,- Zant v. Stephens, 462 U. S. 862, 885 (1983),
this Court has required that a sentencer's discretion be
curbed and informed by -clear and objective standards.-
Gregg v. Georgia, 428 U. S. 153, 198 (1976) (opinion of
Stewart, Powell, and Stevens, JJ.) (citation omitted).
  Because the -circumstances of the crime- factor lacks
clarity and objectivity, it poses an unacceptable risk that
a sentencer will succumb to either overt or subtle racial
impulses or appeals.  This risk is not merely theoretical.
For far too many jurors, the most important -circum-
stances of the crime- are the race of the victim or the
defendant.  See McCleskey v. Kemp, 481 U. S. 279, 320
(1987) (Brennan, J., dissenting); see also General
Accounting Office, Death Penalty Sentencing: Research
Indicates Pattern of Racial Disparities (Feb. 1990)
(surveying and synthesizing studies and finding a
-remarkably consistent- conclusion that the race of the
victim influenced the likelihood of being charged with
capital murder or receiving the death penalty in 82% of
cases), reprinted at 136 Cong. Rec. S6889 (May 24,
1990).
  The California capital sentencing scheme does little to
minimize this risk.  The -circumstances of the crime-
factor may be weighed in aggravation in addition to the
applicable special circumstances.  Cal. Penal Code 190.3
(the trier of fact shall take into account -[t]he circum-
stances of the crime of which the defendant was con-
victed in the present proceeding and the existence of
any special circumstances found to be true-) (emphasis
added).  The special circumstances themselves encompass
many of the factors generally recognized as aggravating,
including multiple-murder convictions; commission of the
murder in relation to another felony; the -especially
heinous, atrocious, or cruel- nature of the murder; and
the relevant identity of the victim (as a law enforcement
officer, a witness to a crime, a judge, a prosecutor, or a
public official).  The statute, therefore, invites the jurors
to speculate about, and give aggravating weight to,
unspecified circumstances apart from these.
  Nor has the California Supreme Court attempted to
limit or guide this ranging inquiry.  Far from it.  That
court has concluded that the -circumstances of the
crime- factor extends beyond -merely the immediate
temporal and spatial circumstances of the crime,- People
v. Edwards, 54 Cal. 3d 787, 833, 819 P. 2d 436, 465
(1991), and leaves -the sentencer free to evaluate the
evidence in accordance with his or her own subjective
values,- People v. Tuilaepa, 4 Cal. 4th 569, 595, 842 P.
2d 1142, 1158 (1992).  The court has even warned that
it has not yet -explore[d] the outer reaches of the
evidence admissible as a circumstance of the crime.-
People v. Edwards, 54 Cal. 3d, at 835, 819 P. 2d, at 467.
Thus, the -unique opportunity for racial prejudice to
operate but remain undetected,- Turner v. Murray, 476
U. S. 28, 35 (1986), exists unchecked in the California
capital sentencing scheme.  This does not instill confi-
dence in the jury's decision to impose the death penalty
on petitioner Tuilaepa, who is Samoan, and whose
victim was white.

                     II
  Although the Court today rejects a well-founded facial
challenge to three of the 11 factors that permit Califor-
nia jurors to select from among capital defendants those
who will receive the death penalty, it has not given the
California system a clean bill of health.  Its unwilling-
ness to conclude that these factors are valid on their
face leaves the door open to a challenge to the applica-
tion of one of these factors in such a way that the risk
of arbitrariness is realized.  The cases before us, for
example, do not clearly present a situation in which the
absence of a mitigator was treated as an aggravator.
  Additionally, the Court's opinion says nothing about
the constitutional adequacy of California's eligibility
process, which subjects a defendant to the death penalty
if he is convicted of first-degree murder and the jury
finds the existence of one -special circumstance.-  By
creating nearly 20 such special circumstances,
California creates an extraordinarily large death pool.
Because petitioners mount no challenge to these circum-
stances, the Court is not called on to determine that
they collectively perform sufficient, meaningful narrow-
ing.  See Zant v. Stephens, 462 U. S. 862 (1983).
  Of particular significance, the Court's consideration of
a small slice of one component of the California scheme
says nothing about the interaction of the various
components-the statutory definition of first-degree
murder, the special circumstances, the relevant factors,
the statutorily required weighing of aggravating and
mitigating factors, and the availability of judicial review,
but not appellate proportionality review-and whether
their end result satisfies the Eighth Amendment's
commands.  The Court's treatment today of the relevant
factors as -selection factors- alone rests on the assump-
tion, not tested, that the special circumstances perform
all of the constitutionally required narrowing for eligibil-
ity.  Should that assumption prove false, it would
further undermine the Court's approval today of these
relevant factors.
  Similarly, in Pulley v. Harris, 465 U. S. 37, 51 (1984),
the Court's conclusion that the California capital
sentencing scheme was not -so lacking in other checks
on arbitrariness that it would not pass muster without
comparative proportionality review- was based in part on
an understanding that the application of the relevant
factors -`provide[s] jury guidance and lessen[s] the
chance of arbitrary application of the death penalty,'-
thereby -`guarantee[ing] that the jury's discretion will be
guided and its consideration deliberate.'-  Ibid., quoting
Harris v. Pulley, 692 F. 2d 1189, 1194 (CA9 1982).  As
litigation exposes the failure of these factors to guide the
jury in making principled distinctions, the Court will be
well advised to reevaluate its decision in Pulley v.
Harris.
  In summary, the Court isolates one part of a complex
scheme and says that, assuming that all the other parts
are doing their job, this one passes muster.  But the
crucial question, and one the Court will need to face, is
how the parts are working together to determine with
rationality and fairness who is exposed to the death
penalty and who receives it.

                     III
  For two decades now, the Court has professed a
commitment to guiding sentencers' discretion so as to
-minimize the risk of wholly arbitrary and capricious
action,- Gregg v. Georgia, 428 U. S. 153, 189 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.), and to
achieve principled distinctions between those who receive
the death penalty and those who do not, see, e.g.,
Espinosa v. Florida, 505 U. S. ___ (1992); Shell v.
Mississippi, 498 U. S. 1 (1990); Maynard v. Cartwright,
486 U. S. 356 (1988).  The Court's approval today of
these California relevant factors calls into question the
continued strength of that commitment.  I respectfully
dissent.