*1 894 3161(c)(2). case, § In this 30-day period
offense renews the
conviction,
upheld petitioner’s
finding
however,
the Fifth Circuit
prior
indictment
is dismissed
applies
that a different rule
when
The minimum time limit
on the
the Government:
runs
motion of
indictment,
any
continu-
superseding,
original,
judge.
holding
discretion of the district
This
ance is left to the
United States
Circuit,
view of the
is consistent with the
Seventh
Circuit, United
Horton,
1165,
(1982),
F. 2d
1169
the Second
v.
676
Todisco,
States v.
(1981),
F. 2d
260
and the
Cir-
Eighth
Dennis,
(1980).
States v.
United
F.
It con-
cuit,
2d
United
however,
the rule in the Ninth Circuit.
flicts,
Harris,
States the Ninth
held
(1984),
Section due having prepare time to a defense without right adequate allow- delay their scheduled trials ing unduly. Rep. defendants S. 96-212, No. p. There a direct conflict command put Congress Circuits over how that will be into effect. Trial Act to Speedy provide intended a uniform national rule delay. Yet, trial regarding scheduling and because of the con- flicting interpretations Circuits, the various a defendant’s right to 30-day preparation period superseding after a indictment now depends almost as much on the happenstance geography as on the Legislative does will of the Branch.
Accordingly, dissent from denial of certiorari. No. 83-6832. Eddmonds Ct. Sup. Illinois. Ill. Certio denied. rari *2 Marshall,
Justice with whom Justice joins, Brennan dissenting.
I would grant certiorari to consider the of constitutionality the Illinois death in penalty statute, prosecutor which vests the the unguided unlimited and discretion to trigger sentencing death proceedings. statute, Under the a death sentencing proceeding will punishable only follow a conviction for a crime “[wjhere ¶ 9.1(d) Stat., requested State.” Ill. Rev. ch. 1984). (Supp. If the prosecutor request chooses not to such a the defendant cannot sentenced to proceeding, be death. Yet the prosecutor’s decision whether to make this is request by any not guided legislative standard. the Illinois scheme introduces unbridled a stage discretion at at which “discretion suitably must be and directed limited so as to minimize the risk of wholly arbitrary capricious action.” Gregg Georgia, (1976) (joint opinion U. S. of announcing judgment Court). Accordingly, a substantial is as to question presented constitutionality of the statute. it outset, important At the is to state what this case clearly is not about. is not in prosecutorial It about discretion an area tra- ditionally committed to such discretion. The discretion at issue fundamentally here is different from the discretion a prosecutor in determining exercises whether to seek an indictment for an of- by death, or to punishable accept plea guilty fense to a lesser stake, instead, included is at dis- offense. What is standardless phase cretion at the cases—the postconviction capital phase repeatedly emphasized which this Court has that discretion must carefully guided. joint opinion announcing judgment Gregg Court’s carefully discretion— Georgia, supra, distinguishes preconviction it which deems discretion— permissible postconviction —from which, states, That can render scheme unconstitutional. unguided makes clear that discretion at the latter opinion impermissible: impose decision to death sentence “[T]he capital of a specific on a individual who been convicted ha[s] on a guided by imposed offense” must be standards and cannot be (Stewart, group selected of offenders.” “capriciously JJ.). Powell, Stevens,
II about the constitution- mind, questions there are serious my discre- the unbridled ality gives of a scheme that select, of individuals convicted an offense group tion to subgroup that will be considered has focused its concern Court defendants, among of which convicted many the decision by death, actually will receive the death offenses Harris, g., Pulley e. See, penalty. (1984); U. S. Ohio, Lockett 586, 600-601 438 U. S. It is at *3 which the focus shifts from the proceedings —in of the nature of the crime to the nature defendant —that arbitrari- discrimination, infect the ness, irrationality likely and are most will live or die. To minimize the decision whether a defendant abuses, consistently these the Court has potential required that, punishable by conviction of an offense following receive determining penalty discretion in who will the death be by statutory standards. limited scheme from has
The Illinois differs schemes this Court do approved capital sentencing proceedings in that in Illinois inexorably not follow conviction for a crime death. Instead, authority duty has the —and —to Illinois narrow down class convicted defendants. Yet the any guide statute does not set standards that decision. Such unguided help arbitrary, discretion cannot but the sort of produce discriminatory application of the capricious, penalty death intolerable under Furman v. Georgia, simply is 408 U. S. (1972). the prosecutor guide 238 Because has no standards decision, any his the Illinois scheme eliminates postconviction cases in which “meaningful distinguishing [the basis for few many is cases in which it is not.” penalty] imposed J., concurring). (White, in potential imposition for arbitrariness of the death to initiate penalty is further exacerbated because the discretion in sentencing individual, is not vested in one but proceedings of each of the 102 Each of Attorneys State’s State’s counties. individuals, subject these pressures to the different political own his can his own no at constituency, policy policy establish —or all—on group how to narrow of individuals convicted crimes by by in punishable death, and this endeavor he is not aided any legislatively imposed any standard or limited legislatively imposed Cousins, constraint. ex rel. People Carey 77 Ill. 2d (1979) 531, 557-558, 809, E. 2d (Ryan, J., N. dissenting); Lewis, 129, 192, see 88 Ill. 2d N. People 1346, E. 2d (1981)(Simon, J., dissenting). 1376-1377 In such a system, there will often no rational distinction between an individual who receives the death and one penalty who does not.
Ill postconvietion discretion that the Illinois statute vests prosecutors particularly pernicious coupled because is requirement the absence of a clear of comparative proportionality review of death sentences The Illinois appeal. review,
statute does not mandate such and the Illinois Supreme ambiguous Court has been about whether it would ever engage analysis of type. People Kubat, See 94 Ill. 2d 502-504, E. 2d (1983); Brownell, N. 277-278 People 508, 541-544, 404 79 Ill. 2d N. E. 2d 198-199 scheme does like any stage assure that Illinois alike, are treated no mechanism to provides protect against or arbitrary, capricious, discriminatory winnowing of defendants convicted of crimes
Central to the Court’s decision in Pulley Harris, supra, that review is not all comparative proportionality capital constitutionally provided was the fact that the scheme required the decision adequate guide standards whether individuals first-degree convicted of murder should be sentenced to death. standards, such did not see much potential Given arbitrary Court But the capricious action. at 53. Court did clearly comparative that review is a proportionality state safe- id., constitutionally and that it guard, might required adequate in a scheme that did not contain sufficient other safe- guards, id., at 51. scheme, an guide the Illinois there are no standards
Under defendants, of the decision as to which important part are actually those convicted crimes sen- try even if to act prosecutors responsi- tenced to death. bly might consistency mean under —whatever scheme— they have no their guide is unattainable because standards safeguards Pulley might adequately actions. identified once the sentencing process rationality of the death protect way in no assure they process, has initiated that but prosecutor who are convicted consistency spectrum across the of defendants comparative pro- Thus, without offenses similarly absolutely review, guarantee there is no portionality crimes, will defendants, and convicted for similar charged situated differently. Irrationality arbitrariness, even be.treated discrimination, likely are to be norm.
IV is in all my penalty I continue to adhere to view that the forbidden punishment circumstances cruel and unusual Gregg Georgia, Eighth and the Fourteenth Amendments. See S., J., dissenting); Georgia, Furman v. (Marshall, U. J., concurring).' case, in this supra, at issue (Marshall, grant I would of the if however, is such that review sentence even may prevailing penalty I view that the death be con- accepted under certain circumstances. The Illinois stitutionally imposed discretion statute vests unbridled consistently in the at which the Court has proceedings at a arbitrary, prevent stated that discretion must be channelled to discriminatory application penalty. of the death capricious, and constitutionality is, of the of this statute I The consideration be- reason, lieve, worthy the attention this Court. For that dissent. respectfully
No. 83-6839. Stuckett Postal United States Service. C. A. 7th Cir. Certiorari denied. Rehnquist White, whom joins,
Justice Justice dissenting. Airlines, Inc., (1982), v. Trans 455 U. Zipes World S. timely employment held that the of an discrimination filing
we charge (EEOC) Employment Opportunity with the Commission *5 Equal a to a under Title jurisdictional prerequisite
is not suit Rights against private employer. of the Civil Act of 1964 a VII filing charge subject The time limit on the of a therefore tolling. waiver, estoppel, holding, so we settled equitable the Courts of This case Appeals. presents conflict against conflict, of a question, background similar similar regarding against Title VII suits the Federal Government.