ARAVE, WARDEN v. CREECH
No. 91-1160
Supreme Court of the United States
Argued November 10, 1992—Decided March 30, 1993
507 U.S. 463
Lynn E. Thomas, Deputy Attorney General of Idaho, argued the cause for petitioner. With her on the briefs was Larry EchoHawk, Attorney General.
Cliff Gardner argued the cause for respondent. With him on the brief was Claude M. Stern.
JUSTICE O‘CONNOR delivered the opinion of the Court.
In 1981 Thomas Eugene Creech beat and kicked to death a fellow inmate at the Idaho State Penitentiary. He pleaded guilty to first-degree murder and was sentenced to death. The sentence was based in part on the statutory aggravating circumstance that “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.”
I
The facts underlying this case could not be more chilling. Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims—who were shot, stabbed, beaten, or strangled to death—have been recovered in seven States. Creech has
Creech‘s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. Jensen, about seven years Creech‘s junior, was a nonviolent car thief. He was also physically handicapped. Part of Jensen‘s brain had been removed prior to his incarceration, and he had a plastic plate in his skull.
The circumstances surrounding Jensen‘s death remain unclear, primarily because Creeсh has given conflicting accounts of them. In one version, Creech killed Jensen in self-defense. In another—the version that Creech gave at his sentencing hearing—other inmates offered to pay Creech or help him escape if he killed Jensen. Creech, through an intermediary, provided Jensen with makeshift weapons and then arranged for Jensen to attack him, in order to create an excuse for the killing. Whichever of these accounts (if either) is true, the Idaho Supreme Court found that the record supported the following facts:
“Jensen approached Creech and swung a weapon at him which consisted of a sock containing batteries. Creech took the weapon away from Jensen, who returned to his cell but emerged with a toothbrush to which had been taped a razor blade. When the two men again met, Jensen made some movement toward Creech, who then struck Jensen between the eyes with the battery laden sock, knocking Jensen to the floor. The fight continued, according to Creech‘s version, with Jensen swinging the razor blade at Creech and Creech hitting Jensen with the battery filled sock. The plate imbedded in Jensen‘s skull shattered, and blood from Jensen‘s skull was splashed on the floor and walls. Finally, the sock broke
and the batteries fell out, and by that time Jensen was helpless. Creech then commenced kicking Jensen about the throat and head. Sometime later a guard noticed blood, and Jensen was taken to the hospital, where he died the same day.” State v. Creech, 105 Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert. denied, 465 U. S. 1051 (1984).
Creech pleaded guilty to first-degree murder. The trial judge held a sentencing hearing in accordance with
“[T]he victim, once the attack commenced, was under the complete domination and control of the defendant. The murder itself was extremely gruesome evidencing an excessive violent rage. With the victim‘s attack as an excuse, the murder then took on many of the aspects of an assassination. These violent actions . . . went well beyond self-defense.
. . .
“. . . The murder, once commenced, appears to have been an intentional, calculated act.” Id., at 32-33.
The judge then found beyond a reasonable doubt five statutory aggravating circumstances, including that Creech, “[b]y the murder, or circumstances surrounding its commission, . . . exhibited utter disregard for human life.” Id., at 34. He observed in this cоntext that “[a]fter the victim was helpless [Creech] killed him.” Ibid. Next, the judge concluded that the mitigating circumstances did not outweigh the aggravat-
After temporarily remanding for the trial judge to impose sentence in open court in Creech‘s presence, the Idaho Supreme Court affirmed. The court rejected Creech‘s argument that the “utter disregard” circumstance is unconstitutionally vague, reaffirming the limiting construction it had placed on the statutory language in State v. Osborn, 102 Idaho 405, 631 P. 2d 187 (1981):
“A . . . limiting construction must be placed upon the aggravating circumstances in
I. C. § 19-2515[g](6) , that ‘[b]y the murder, or the circumstances surrounding its commission, the defendant exhibited utter disregard for human life.’ To properly define this circumstance, it is important to note the other aggravating circumstancеs with which this provision overlaps. The second aggravating circumstance,I. C. § 19-2515[g](2) , that the defendant committed another murder at the time this murder was committed, obviously could show an utter disregard for human life, as could the third aggravating circumstance,I. C. § 19-2515[g](3) , that the defendant knowingly created a great risk of death to many persons. The same can be said for the fourth aggravating circumstance,I. C. § 19-2515[g](4) , that the murder was committed for remuneration. Since we will not presume that the legislative intent was to duplicate any already enumerated circumstance, thus making [the ‘utter disregard’ circumstance] mere surplusage, we hold that the phrase ‘utter disregard’ must be viewed in reference to acts other than those set forth inI. C. §§ 19-2515[g](2) ,(3) , and(4) . We conclude instead that the phrase is meant to be reflective of acts or circumstances surrounding the crime which exhibit the highest, the utmost, callous disregard for humаn life, i. e., the cold-blooded, pitiless slayer.” Creech, supra, at 370,670 P. 2d, at 471 (quoting Osborn, supra, at 418-419, 631 P. 2d, at 200-201) (citation omitted).
After independently reviewing the record, the Idaho Supreme Court also held that the evidence clearly supported the trial judge‘s findings of aggravating and mitigating circumstances, including the finding that Creech had exhibited “utter disregard for human life.” 105 Idaho, at 369, 670 P. 2d, at 470. Then, as required by Idaho law, see
Creech filed a petition for writ of habeas corpus in the United States District Court for the District of Idaho. The District Court denied relief. See Creech v. Arave, No. 86-1042 (June 18, 1986). The Court of Appeals for the Ninth Circuit, however, agreed with Creech that the “utter disregard” circumstance is unconstitutionally vague. 947 F. 2d 873 (1991). The court first considered the statutory language itself and concluded that the phrase “utter disregard” does not adequately channel sentencing discretion. Id., at 882-883. The court then considered the Osborn narrowing construction and found it unsatisfactory as well. Explaining what “utter disregard” does not mean, the Court of Appeals reasoned, does not give the phrase content. 947 F. 2d, at 883, n. 12. Nor do the words “the highest, the utmost, callous disregard for human life” clarify the statutory language; they merely emphasize it. Id., at 883-884 (citing Maynard v. Cartwright, 486 U. S. 356, 364 (1988)). The phrase “cold-blooded, pitiless slayer” also was deemed inadequate. The Court of Appeals construed our precedents, including Walton v. Arizona, 497 U. S. 639 (1990), to
Three judges dissented from an order denying rehearing en banc. The dissenters argued that the panel had misconstrued both the “utter disregard” factor and this Court‘s prior decisions. Whether a defendant is a “cold-blooded, pitiless slayer,” they said, is not a subjective inquiry; it is an evidentiary question to be determined from facts and circumstances. Id., at 890 (opinion of Trott, J.). The dissenters found the Osborn limiting construction indistinguishable from the construction this Court approved in Walton. 947 F. 2d, at 890. We granted certiorari, limited to the narrow question whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court in Osborn, is unconstitutionally vague. See 504 U. S. 984 (1992).
II
This case is governed by the standards we articulated in Walton, supra, and Lewis v. Jeffers, 497 U. S. 764 (1990). In Jeffers we reaffirmed the fundamental principle that, to satisfy the Eighth and Fourteenth Amendments, a capital sentencing scheme must “‘suitably direc[t] and limi[t]‘” the sentencer‘s discretion “so as to minimize the risk of wholly arbitrary and capricious action.” Id., at 774 (quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976) (joint opinion of Stewart,
In Walton we set forth the inquiry that a federal court must undertake when asked to decide whether a particular aggravating circumstance meets these standards:
“[The] federal court . . . must first determine whether the statutory language defining the circumstance is itself too vague tо provide any guidance to the sentencer. If so, then the federal court must attempt to determine whether the state courts have further defined the vague terms and, if they have done so, whether those definitions are constitutionally sufficient, i. e., whether they provide some guidance to the sentencer.” 497 U. S., at 654 (emphasis in original).
Where, as in Idaho, the sentencer is a judge rather than a jury, the federal court must presume that the judge knew and applied any existing narrowing construction. Id., at 653.
Unlike the Court of Appeals, we do not believe it is necessary to decide whether the statutory phrase “utter disregard for human life” itself passes constitutional muster. The Idaho Supreme Court has adopted a limiting construction, and we believe that construction meets constitutional requirements.
Contrary to the dissent‘s assertions, see post, at 481-485, the phrase “cold-blooded, pitiless slayer” is not without content. Webster‘s Dictionary defines “pitiless” to mean devoid of, or unmoved by, mercy or сompassion. Webster‘s Third New International Dictionary 1726 (1986). The lead entry for “cold-blooded” gives coordinate definitions. One,
In ordinary usage, then, the phrase “cold-blooded, pitiless slayer” refers to a killer who kills without feeling or sympathy. We assume that legislators use words in their ordinary, everyday senses, see, e. g., INS v. Phinpathya, 464 U. S. 183, 189 (1984), and there is no reason to suppose that judges do otherwise. The dissent questions our resort to dictionaries for the common meaning of the word “cold-blooded,” post, at 482, but offers no persuasive authority to suggest that the word, in its present context, means anything else.
The Court of Appeals thought the Osborn limiting construction inadequate not because the phrase “cold-blooded, pitiless slayer” lacks meaning, but because it requires the sentencer to make a “subjective determination.” We disagree. We are not faced with pejorative adjectives such as “especially heinous, atrocious, or cruel” or “outrageously or wantonly vile, horrible and inhuman“—tеrms that describe a crime as a whole and that this Court has held to be unconstitutionally vague. See, e. g., Shell v. Mississippi, 498 U. S. 1 (1990) (per curiam); Cartwright, 486 U. S., at 363-364; God-
Determining whether a capital defendant killed without feeling or sympathy is undoubtedly more difficult than, for example, determining whether he “was previously convicted of another murder,”
Thе language at issue here is no less “clear and objective” than the language sustained in Walton. Whether a defendant “relishes” or derives “pleasure” from his crime arguably may be easier to determine than whether he acts without feeling or sympathy, since enjoyment is an affirmative mental state, whereas the cold-bloodedness inquiry in a sense requires the sentencer to find a negative. But we do not think so subtle a distinction has constitutional significance. The Osborn limiting construction, like the one upheld in Walton, defines a state of mind that is ascertainable from surrounding facts. Accordingly, we decline to invalidate the “utter disregard” circumstance on the ground that the Idaho Supreme Court‘s limiting construction is insufficiently “objective.”
Of course, it is not enough for an aggravating circumstance, as construed by the state courts, to be determinate. Our precedents make clear that a State‘s capital sentencing scheme also must “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U. S. 862, 877 (1983). When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the circumstance must provide a principled basis for doing so. See Jeffers, supra, at 776; Godfrey, 446 U. S., at 433. If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm. See Cartwright, supra, at 364 (invalidating aggravating circumstance that “an ordinary person could honestly believe” described every murder); Godfrey, supra, at 428-429 (“A person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman‘“).
Although the question is close, we believe the Osborn construction satisfies this narrowing requirement. The class of murderers eligible for capital punishment under Idaho law is defined brоadly to include all first-degree murderers.
We acknowledge that, even within these broad categories, the word “pitiless,” standing alone, might not narrow the class of defendants eligible for the death penalty. A sentencing judge might conclude that every first-degree murderer is “pitiless,” because it is difficult to imagine how a person with any mercy or compassion could kill another human being without justification. Given the statutory scheme, however, we believe that a sentencing judge reason-
Creech argues that the Idaho courts have not applied the “utter disregard” circumstance consistently. He points out that the courts have found defendants to exhibit “utter disregard” in a wide range of cases. This, he claims, demonstrates that the circumstance is nothing more than a catch-all. The dissent apparently agrees. See post, at 485-487. The State, in turn, offers its own rеview of the cases and contends that they are consistent. In essence, the parties and the dissent would have us determine the facial constitutionality of the “utter disregard” circumstance, as construed in Osborn, by examining applications of the circumstance in cases not before us.
As an initial matter, we do not think the fact that “[a]ll kinds of . . . factors,” post, at 486, may demonstrate the requisite state of mind renders the Osborn construction facially invalid. That the Idaho courts may find first-degree murderers to be “cold-blooded” and “pitiless” in a wide range of circumstances is unsurprising. It also is irrelevant to the question before us. We did not undertake a comparative analysis of state court decisions in Walton. See 497 U. S., at 655 (construing the argument that the aggravating circumstance “has been applied in an arbitrary manner” as a challenge to the state court‘s proportionality review). And in Jeffers we stated clearly that the question whether state
A comparative analysis of state cоurt cases, moreover, would be particularly inappropriate here. The Idaho Supreme Court upheld Creech‘s death sentence in 1983—before it had applied Osborn to any other set of facts. None of the decisions on which the dissent relies, or upon which Creech asks us to invalidate his death sentence, influenced either the trial judge who sentenced Creech or the appellate judges who upheld the sentence. And there is no question that Idaho‘s formulation of its limiting construction has been consistent. The Idaho Supreme Court has reaffirmed its original interpretation of “utter disregard” repeatedly, often reciting the definition given in Osborn verbatim. See, e. g., State v. Card, 121 Idaho 425, 435-436, 825 P. 2d 1081, 1091-1092 (1991) (citing cases), cert. denied, 506 U. S. 915 (1992). It also has explained that “utter disregard” differs from Idaho‘s “heinous, atrocious or cruel” aggravating circumstance,
III
Creech argues alternatively that the “utter disregard” circumstance, even if facially valid, does not apply to him. He suggests—as did the Court of Appeals and as does the dissent, post, at 488—that the trial judge‘s findings that he was provoked and that he exhibited an “excessive violent rage” are irreconcilable with a finding of “utter disregard.” The Idaho Supreme Court, Creech claims, did not cure the error on appeal. There also appears to be some question whether the other murders that Creech has committed, and the self-defense explanations he has offered for some of thеm, bear on the “utter disregard” determination. See Tr. of Oral Arg. 5-7, 18-21; cf. post, at 488, n. 15.
These are primarily questions of state law. As we said in Jeffers, a state court‘s application of a valid aggravating circumstance violates the Constitution only if “no reasonable sentencer” could find the circumstance to exist. 497 U. S., at 783. The Court of Appeals had no occasion to decide the Jeffers issue in this case, since it found the “utter disregard” circumstance facially vague. The posture of the case, moreover, makes it unnecessary for us to reach the remaining arguments. The Court of Appeals granted Creech relief on two other claims: that the trial judge improperly refused to allow him to present new mitigating evidence when he was resentenced in open court, and that the judge applied two aggravating circumstances without making a finding required under state law. See 947 F. 2d, at 881-882. On the
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, dissenting.
Confronted with an insupportable limiting construction of an unconstitutionally vague statute, the majority in turn concocts its own limiting construction of the state court‘s formulation. Like “nonsense upon stilts,”1 however, the majority‘s reconstruction only highlights the deficient character of the nebulous formulation that it seeks to advance. Because the metaphor “cold-blooded” by which Idaho defines its “utter disregard” circumstance is both vague and unenlightening, and because the majority‘s recasting of that metaphor is not dictated by common usage, legal usage, or the usage of the Idaho courts, the statute fails to provide meaningful guidance to the sentеncer as required by the Constitution. Accordingly, I dissent.
I
I discuss the applicable legal standards only briefly, because, for the most part, I agree with the majority about what is required in a case of this kind. As the majority acknowledges, ante, at 474, “an aggravating circumstance 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.” Zant v. Stephens, 462 U. S. 862,
II
The Idaho Supreme Court has determined that under our cases Idaho‘s statutory phrase, “utter disregard for human life,” requires a limiting construсtion, see State v. Osborn, 102 Idaho 405, 418, 631 P. 2d 187, 200 (1981); Sivak v. State, 112 Idaho 197, 209, 731 P. 2d 192, 204 (1986), and petitioner does not challenge the Court of Appeals’ conclusion that the phrase, unadorned, fails to meet constitutional standards. This is understandable. Every first-degree murder will demonstrate a lack of regard for human life, and there is no
Under Osborn, an offense demonstrates “utter disregard for human life” when the “acts or circumstances surrounding the crime . . . exhibit the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer.” 102 Idaho, at 419, 631 P. 2d, at 201. Jettisoning all but the term, “cold-blooded,” the majority contends that this cumbersome constructiоn clearly singles out the killing committed “without feeling or sympathy.” Ante, at 476. As an initial matter, I fail to see how “without feeling or sympathy” is meaningfully different from “devoid of . . . mercy or compassion“—the definition of “pitiless” that the majority concedes to be constitutionally inadequate. See ante, at 471.
Even if there is a distinction, however, the “without feeling or sympathy” test, which never has been articulated by any Idaho court, does not flow ineluctably from the phrase at issue in this case: “cold-blooded.” I must stress in this regard the rather obvious point that a “facial” challenge of this nature—one alleging that a limiting construction provides inadequate guidance—cannot be defeated merely by a dem-
I begin with “ordinary usage.” The majority points out that the first definition in Webster‘s Dictionary under the entry “cold-blooded” is “‘marked by absence of warm feelings: without consideration, compunction, or clemency.‘” Ante, at 472, quoting Webster‘s Third New International Dictionary 442 (1986). If Webster‘s’ rendition of the term‘s ordinary meaning is to be credited, then Idaho has singled out murderers who act without warm feelings: those who act without consideration, compunction, or clemency. Obviously that definition is no more illuminating than the adjective “pitiless” as defined by the majority. What murderer does act with consideration or compunction or clemency?3
In its eagerness to boil thе phrase down to a serviceable core, the majority virtually ignores the very definition it cites. Instead, the majority comes up with a hybrid all its own—“without feeling or sympathy“—and then goes one step further, asserting that because the term “cold-blooded” so obviously means “without feeling,” it cannot refer as ordinarily understood to murderers who “kill with anger, jealousy, revenge, or a variety of other emotions.” Ante, at 476. That is incorrect. In everyday parlance, the term “cold-blooded” routinely is used to describe killings that fall outside the majority‘s definition. In the first nine weeks of this
In legal usage, the metaphor “cold blood” does have a specific meaning. “Cold blood” is used “to designate a willful, deliberate, and premeditated homicide.” Black‘s Law Dictionary 260 (6th ed. 1990). As such, the term is used to differentiate between first- and second-degree murders.13 For example, in United States v. Frady, 456 U. S. 152 (1982), JUS-
Finally, I examine the construction‘s application by the Idaho courts. The majority acknowledges the appropriateness of examining “other state decisions when the construction of an aggravating circumstance has been unclear,” such as where state courts have not adhered to a single limiting construction. Ante, at 477. Here, however, the majority believes such an inquiry is “irrelevant,” ante, at 476, because “there is no question that Idaho‘s formulation of its limiting construction has been consistent,” ante, at 477. The majority misses the point. Idaho‘s application of the Osborn formulation is relevant not because that formulation has been inconsistently invoked, but because the construction has never meant what the majority says it does. In other words, it is the majority‘s reconstruction of the (unconstitutional) construction that has not been applied consistently (or ever, for that matter). If, for example, a State declared that “jaberwocky” was an aggravating circumstance, and then carefully invoked “jaberwocky” in every one of its capital cases, this Court could not simply decide that “jaberwocky” means “killing a police officer” and then dispense with any inquiry into whether the term ever had been understood in that way by the State‘s courts, simply because the “jaberwocky” construction consistently had been reaffirmed.
An examination of the Idaho cases reveals that the Osborn formulation is not much better than “jaberwocky.” As
The futility of the Idaho courts’ attempt to bring some rationality to the “utter disregard” circumstance is glaringly evident in the sole post-Osborn case that endeavors to explain the construction in any depth. In State v. Fain, 116 Idaho 82, 774 P. 2d 252, cert. denied, 493 U. S. 917 (1989), the court declared that the “utter disregard” factor refers to “the defendant‘s lack of conscientious scruples against killing
Petitioner in his brief embraces Fain‘s broad construction. “In every case in which the Idaho Supreme Court has upheld a death sentence based wholly or in part on a finding of utter disregard for human life, the defendant had acted without conscientious scruple against killing.” Brief for Petitioner 25. Petitioner cites this reassuring fact as the “best evidence that Idaho‘s utter disregard factor is not so broad that it operates simply as a catch-all for murders not covered by other aggravating circumstances.” Id., at 24. This “best evidence” is not very good evidence, especially when viewed against the fact that the Idaho Supreme Court never has reversed a finding of utter disregard.14 Equally unsettling is petitioner‘s frank admission that the Osborn construction “does not make findings of the aggravating factors depend on the presence of particular facts. Instead Idaho has chosen to rely on the ability of the sentencing judge to make principled distinctions between capital and non-capital cases
Ultimately, it hardly seems necessary to look beyond the record of this case to determine that either the majority‘s construction is inadequate, or that there was insufficient evidence to support the “utter disregard” factor here. The record, which the majority takes pains to assure us “could not be more chilling,” ante, at 465,15 includes an explicit finding by the trial judge that Creech was the subject of an unprovoked attack and that the killing took place in an “excessive violent rage.” App. 52. If Creech somehow is covered by the “utter disregard” factor as understood by the majority (one who kills not with anger, but indifference, ante, at 476), then there can be no doubt that the factor is so broad as to cover any case. If Creech is not covered, then his sentence was wrongly imposed.
III
Let me be clear about what the majority would have to show in order to save the Idaho statute: that, on its face, the Osborn construction—“the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer“—refers clearly and exclusively to crimes that occur “without feeling or sympathy,” that is, to those that occur
There is, of course, something distasteful and absurd in the very project of parsing this lexicon of death. But as long as we are in the death business, we shall be in the parsing business as well. Today‘s majority stretches the bounds of permissible construction past the breaking point. “‘Vague terms do not suddenly become clear when they are defined by referenсe to other vague terms,‘” Walton v. Arizona, 497 U. S., at 693-694, n. 16 (dissenting opinion), quoting Cartwright v. Maynard, 822 F. 2d 1477, 1489 (CA10 1987), nor do sweeping categories become narrow by mere restatement. The Osborn formulation is worthless, and neither common usage, nor legal terminology, nor the Idaho cases support the majority‘s attempt to salvage it. The statute is simply unconstitutional and Idaho should be busy repairing it.
I would affirm the judgment of the Court of Appeals.