*1 v. PHELPS, LOWENFIELD SECRETARY, LOUISIANA CORRECTIONS, DEPARTMENT OF et al. Argued January 13, No. October 86-6867. 1987 Decided *2 Court, J., White, opinion delivered the of the in which Rehnquist, C. JJ., which, Scalia, joined, and in III of Blackmun, O’Connor, and Part J., J., thereof, Stevens, joined. Marshall, except for the last sentence J., opinion, dissenting joined, in Part Brennan, I filed which J., joined, post, p. 246. which Stevens,
David With Klingsberg argued petitioner. the cause S. Gary Guzy. him on the briefs was argued respondents. M.
John Mamoulides the cause for Attorney Guste, Jr., With him on the brief were William J. * Dorothy Pendergast. Louisiana, A. General opinion delivered the Rehnquist Justice Chief † Court.
Petitioner, sentenced to death the Louisiana state courts, makes two federal constitutional attacks on his sen- impermissibly tence. He first contends that trial court by inquiries coerced the to return a sentence supplemental charge gave made to the and a which it receipt jury following aof communication from that *3 body. Petitioner’s second contention is that the death sen- Eighth tence violates the Amendment to the United States single “aggravating Constitution because circumstance” by jury upheld by Supreme found and Court of Loui- merely duplicates underlying siana an element of the offense first-degree guilt of of murder which he was convicted at the reject stage. We both of these contentions.
I charged killing Petitioner was with a woman with whom he family, lived, three had members of her and one of her male jury guilty petitioner friends. The found of two counts of manslaughter first-degree and three counts of murder; an es- finding peti- a sential element of the latter verdicts was that bodily great upon kill or inflict tioner intended “to harm more §14:30A(3) (West person.” than one La. Rev. Stat. Ann. 1986). amicus curiae urging *Briefs affirmance were filed for the United Fried, Attorney Weld, Dep- General Solicitor Assistant General States Larkin, Jr., Criscitelli;
uty Bryson, Solicitor General Paul J. and Sara Clark, General, J. Steven Attorney and the State of Arkansas and Miller, Clint Attorney Assistant General. † Justice Stevens joins opinion, except III Part of this for the last sentence. jury on the its deliberations
The commenced guilt, judge’s day and it the verdict of that returned same phase charge trial in this second included to them jurors the views should consider familiar admonition that objective reaching a verdict, but that others with the doing they their own honest beliefs should not surrender jury charged if also were unable to The court so. impose recommendation, court unanimous would reach a possibility pro- imprisonment of life without the sentence a suspension parole, bation, of sentence. evening, jury to retire re-
The was allowed late and day day. During the next the afternoon a convene jury stating from the foreman note came requesting time, to reach a decision at that was unable again responsibilities. advise the as to its that the court provided piece The court The was called back. paper juror paper asked each to write on the his to each question whether “further or her name and the answer obtaining helpful in The would be verdict.” deliberations complied, jurors asked to retire to the room. and were eight papers in the affirmative—that revealed answers helpful negative. more would be four deliberation —and previously for a made motion mis- Defense counsel renewed *4 obviously hung. arguing jury The trial that the was trial, noting sign motion, that this was the first court denied jury having reaching a verdict in the was trouble agreed phase. previously penalty that as The court directed jury upon in- would return to the courtroom and be reaching again obligations to structed as its verdict. jurors to the courtroom a new note When the returned given judge. from This note stated that them was to the jurors question previously of some had misunderstood jury using judge polled again the same asked. slightly; judge changing question asked, method but you any you further will enable “Do feel deliberations App. jurors an- verdict?” 55. This time 11 arrive at a negative.
swered the affirmative and 1 in the The court jury: then reinstructed the you
“Ladies and I Gentlemen, as if instructed earlier unanimously agree unable on a recommen- impose dation the Court shall the sentence of Life Imprisonment without benefit Probation, Parole, Suspension of Sentence. you your duty
“When enter the room it is to con- sult with one another to consider each other’s views and objective reaching to discuss the with the evidence you just if verdict can do so without violence to that indi- judgment. vidual you yourself only
“Each of must decide the case for but impartial after discussion and consideration of the case your jurors. with fellow You are not advocates for one your side or the other. Do not hesitate to reexamine change your opinion you own views and to if are con- you wrong your vinced are but do not surrender honest weight solely belief as to the effect evidence be- opinion jurors your cause of the fellow or for the mere purpose returning a verdict.” at 56. object poll,
Defense counsel did not to either to the manner polls supplemental conducted, which the were or to the in- struction. The its resumed deliberations and in 30 min- sentencing petitioner utes returned with a verdict to death first-degree support on all three counts of In murder. of all statutory aggravating three sentences, found the “knowingly creating] great circumstance a risk death or bodily person.” harm to more than one La. Code Crim. 905.4(d) (West 1984). Proc. Ann., Art. One death sentence additionally supported by aggravating circumstance prosecution against that “the victim was a witness 905.4(h). defendant. ...” Art. appeal, Supreme upheld
On direct
the Louisiana
Court
*5
convictions and sentences. State v.
Lowenfield,
So. 2d
(1986).
(1985),
cert. denied,
II petitioner’s Our review of contention im- was properly requires supplemental coerced that we consider the charge given trial “in court its context and under all States, circumstances.” Jenkins v. United (1965) curiam). (per supplemental 445, 446 The a use of charge long Nearly century ago has been sanctioned. a in (1896), Allen v. United States, U. S. this Court re- charge a viewed given similar but no means identical to that jury here, to the Louisiana and that it concluded system. error not reversible even within the federal The de- by Judge fendant that case had been sentenced exercising ju- Parker the Western District of Arkansas, unique among judge’s charge risdiction federal courts. The opinion is not set out verbatim in the of this Court, but dif- charge given present fered from the in the case in that the charge urged minority Allen to consider the views of the majority, and ask themselves whether their own views were upheld reasonable under circumstances. This Court against conviction and sentence the defendant’s claim of coer- saying: cion, very jury system object
“The of the is to unanim- secure ity by comparison by arguments among views, certainly jurors It themselves. cannot be the law juror that each should not listen ar- with deference to the guments judgment, and with a distrust his own if he large majority jury taking finds a different view of the case from what he does himself. It cannot be that juror go each should room with a blind deter- represent opinion mination that the verdict his shall moment; or, case at that that he should close his ears arguments equally to the men who are honest and intelligent as himself.” at 501-502. continuing validity of this Court’s observations beyond dispute, they greater apply
Allen are
with even
charge given, in con
this,
such as
where
force
a case
charge,”
Allen
does not
“traditional
to the so-called
trast
minority
specifically
jurors.1
speak
But in this case
to the
*7
charge
purposes
a
served
such
avoidance
one of the
—the
present
retrial —is not
because Loui
societal costs of a
jury hangs,
provides
the
im
that if the
court shall
law
siana
imprisonment.
pose
Proc.
of life
La. Code Crim.
a sentence
(West 1984).
urges
naturally
Petitioner
Ann., Art. 905.8
charge
impermissible
difference
here
makes the
that this
Eighth
Amendment.
the Due Process Clause and
under
the division
function between
The difference between
obviously
judge
in
in Allen
this case and
division
weighs
but
do not find it dis-
calculus,
in the constitutional
we
capital sentencing proceeding
positive.
in a
The State has
having
jury “express
strong
interest
the conscience
question
community on
ultimate
of life or death.”
(1968). Surely
Witherspoon
if
519
Illinois,
510,
v.
only
from its deliberations after
one
had returned
failed to achieve una
and informed
court that
had
hour
incontestably
nimity
have
ballot,
on the first
the court would
authority
they
This
to insist that
deliberate further.
had the
Allen,
even
is true even
cases such as
one
though
naturally
“quali-
are
mindful
such cases that
we
1
Appeals
upheld
sup
some form of a
All of the Federal Courts
have
Angiulo,
(CA1
See United States v.
charge.
F.
plemental
485
2d 37
Burke,
70,
(CA2),
denied,
United States
1973);
v.
700 F. 2d
80
cert.
464
Fioravanti,
States v.
United
(1983);
407,
412 F. 2d
414-420
U. S. 816
States,
sub nom. Panaccione
v. United
(CA3),
396
837
cert. denied
U. S.
(CA4 1970);
Sawyers,
States
United States
United
(1969);
v.
423 F. 2d
1335
Kelly,
denied,
(1986);
575,
(CA5),
F.
cert.
tative difference between death and other calls for greater degree reliability when death sentence is (1978). imposed.” Lockett v. 438 U. Ohio, S. Petitioner relies on this Court’s in Jenkins decision supra,2 States, but think that him United we case affords no help. judge There the had a note to the sent to the ef agree upon judge fect that it unable to verdict; then gave jury, additional instructions to the the course of got he which said: “‘You have to reach a decision in this 446. case.’” This Court “in its concluded that con judge’s text and under all the circumstances the statement had the coercive effect attributed to it.” Ibid. The differ language language ence between the used there and the used present sufficiently fallacy in the case obvious to show petitioner’s colloquy reliance. same is true of the be *8 judge jury tween the and the foreman of the in United States Gypsum (1978),upon Co., v. United States 438 U. 459 422, S. petitioner which also relies. argues, however,
Petitioner that the coercive effect of the supplemental charge by inquiries was exacerbated made to jury by the the trial In States, court. v. United Brasfield (1926), 448 had, 272 U. S. the trial court after deliberations inquired jury stalled, as to how divided, the and was in- simply jury formed nine stood to three. The subsequently resumed deliberations and found the defend- guilty. inquiry ants This Court concluded that into the the jury’s numerical division necessitated reversal because was generally always brought coercive and almost to bear “in degree, although improper some serious measurable, not upon jury.” Although influence the at 450. the deci- 2 in Jenkins v. United States was based ruling We note that our on our Hale, courts, cf. United States v. supervisory power over federal (1975), S. n. The Jen- grounds. U. not on constitutional kins Court Constitution, provision no upon cited but rather relied S., involving supervisory powers. other cases exercise U. 446. supervisory exercise this Court’s was an
sion Brasfield potential powers,3 as to the dan it is nonetheless instructive jury polling. gers of attempt within the to fit the instant facts hold-
Petitioner’s unavailing. inquiry ing Here the is, however, of Brasfield they was not as to how division the to the numerical as they how on the verdict, the merits of the but stood on stood might question them deliberations assist of whether further why returning is no reason those who a verdict. There minority the merits would necessar- been on have helpful, ily would not be that further deliberation conclude majority necessarily in the would conclude other- that those clearly independent questions are of one an- The two wise. question type asked trial other. We believe exactly im- this what the Court court in case is Brasfield inquiry “[An approved plicitly when it stated: as numerical purpose division] no that cannot be attained serves useful requiring questions or ex- to reveal nature Ibid. tent its division.” returned with its verdict soon are mindful
We receiving supplemental instruction, and that this after Gypsum suggests possibility of coercion. United States supra, however, that note, at 462. We defense counsel Co., polls supplemental object or the instruc to either did not thereby suggest petitioner tion. do not waived We (1985), Wainwright Witt, 412, 431, n. 11 issue, *9 potential think such an omission indicates that for but we argued apparent spot.4 not to one on the coercion now was 11. 430-431, at and n. 3 no mention of the Due Process Clause decision makes Our Brasfield provision. Appeals any constitutional The Federal Courts or other uniformly rejected per ap se reversal have notion that Brasfield’s reviewing proceedings on habeas cor proach must be followed when state (CA6 Parke, 847, 1984), g., 741 cert. pus. E. Williams v. F. 2d 851 de Sumner, 403, nied, (1985); F. 2d S. 1029 Locks v. 405-407 470 U. (1983). denied, (CA9), S. 933 cert. 464 U. dissent, post, were motions referred to n. The mistrial polls supplemental of the trial court —the and the unrelated to the actions polling We hold that on these facts the of the combination supplemental of the and the instruction was not “coer- way deny petitioner any in such a as to cive” constitutional By holding right. so we do not mean to be understood as supplemental saying charges poll- other combinations might require Any ing a different conclusion. criminal especially any capital being defendant, and defendant, tried by jury body. is entitled to the uncoerced verdict of that stated we For reasons hold there was no coercion here.
Ill ground vacating Petitioner advances as second for his aggravating sentence of that the sole circumstance sentencing phase found at the was identical to an he element of crime which was convicted. Pe- urges overlap sentencing this titioner phase left the at the merely repeat findings guilt free one of its in the phase, phase thus not to narrow further in the death-eligible Upon the class of murderers. consideration of capital punishment light the Louisiana scheme in the reject argument. decisions this Court we grades Louisiana has five established of homicide: first- degree second-degree manslaughter, negli murder, murder, gent homicide, and vehicular homicide. La. Rev. Stat. Ann. (West 1986). § Second-degree 14:29 murder includes inten provides felony punish tional murder and murder, and imprisonment possibility parole. of life ment without the §14:30.1.5 first-degree Louisiana defines murder to include a narrower class of homicides: petitioner’s argument form the
instruction —that now core of and the dis- attack, sent’s and there is no reason defense counsel would have been dis- objecting from suaded to these latter actions because of the unsuccessful mistrial motions. degree killing “Second murder is the being: a human “(1) specific great When the offender has intent to kill inflict or to bodily harm; or
“(2) engaged perpetration attempted per- When offender petration aggravated rape, aggravated arson, aggravated burglary, ag- *10 being: killing degree is of a human
“First murder “(1) specific to kill or to offender has intent When the perpetra- bodily engaged great in the harm and is inflict kidnap- attempted perpetration aggravated or tion aggravated escape, aggravated ping, aggravated arson, simple burglary, robbery, rape, aggravated armed or robbery;
“(2) specific to kill or the offender has a intent When upon peace great bodily a fireman or offi- to inflict harm engaged performance duties; in the of his lawful cer “(3) specific kill has a intent to or the offender When person; great bodily upon one harm more than to inflict or
“(4) specific kill has intent to or the offender When bodily great offered, harm and has has been of- inflict anything given, or received of value for fered, has has killing. “(5) specific kill has the intent to or When the offender age great bodily upon a harm victim under the inflict § years.” of twelve 14:30A. first-degree guilty
An found murder sen- individual separate proceeding to either tenced in a the same parole, proba- imprisonment or life without benefit § suspension 14:30C. “A sentence of or of sentence. tion, imposed beyond finds death shall be unless statutory aggravating one cir- reasonable doubt that at least any mitigating and, consideration cumstance exists after im- circumstances, recommends that the sentence death be (West 1984). posed.” Ann., La. Code Proc. Art. 905.3 Crim. statutory aggravating has established 10 circum- Louisiana robbery, simple gravated kidnapping, aggravated escape, armed rob- bodily bery, though great he no intent to kill or to harm.” even has inflict (West 1986). §14:30.1 La. Rev. Ann. Stat. *11 If stances. Art. 905.4.6 a of returns sentence death, is automatically sentence reviewable for exces siveness Court of by Supreme Louisiana. Art. 905.9. found
Petitioner was of three counts of guilty first-degree A.(3): § murder under 14.30. offender has a in- specific “[T]he tent to kill to inflict harm great bodily or more than one upon The sole person.” aggravating circumstance both found by the Louisiana upheld Supreme Court was that “the offender created a or knowingly risk great 905.4(d). to more harm than one In bodily person.” Art. these circumstances, these two provisions are interpreted following aggravating “The shall be considered circumstances: “(a) engaged perpetration attempted per- the offender was in the or petration rape, aggravated aggravated kidnapping, aggravated bur- glary, arson, aggravated aggravated escape, robbery, simple armed or robbery;
“(b) peace the victim was a engaged fireman or officer in his lawful duties;
“(c)
murder,
previously
the offender was
of an
ag-
convicted
unrelated
rape,
gravated
aggravated
significant prior history
or
kidnapping or has a
activity;
of criminal
“(d)
knowingly
great bodily
the offender
created a risk
death or
harm
person;
to more than one
“(e)
given
the offender offered or has been
or
offered
has
or received
anything of
offense;
value for the commission of the
“(f) the
impris-
offender
the time of the
commission the offense was
after
felony;
oned
sentence for the commission of an unrelated forcible
“(g)
especially heinous, atrocious,
the offense was
in an
committed
or
manner;
cruel
or
“(h)
defendant,
prosecution against
the victim
in a
was a witness
gave
any
material
investigation
prosecution
assistance to the
or
state
defendant,
eyewitness
a
alleged
was an
to crime
to have
com-
been
possessed
mitted
the defendant or
against
other material evidence
defendant.
“(i)
any
employee
the victim was a
officer or
correctional
other
Department
who,
Louisiana
Corrections
the normal course of his em-
ployment
required
persons
to come in close contact with
incarcerated
prison facility,
in a state
engaged
and the victim was
in his lawful duties at
(West
Ann.,
time
of the offense.” La. Code Crim. Proc.
Art. 905.4
1984).
“parallel
law. See State v. Wil-
under Louisiana
fashion”
(La. 1985).
argu-
Petitioner’s
2d
726-727
liams,
So.
requires
provisions
parallel
nature
these
ment
premise
on mistaken
as
be set aside rests
that his sentences
aggravating
necessary role of
circumstances.
capital sentencing
pass
muster,
scheme
To
constitutional
*12
persons eligible
“genuinely
the
for the
narrow
class of
must
reasonably justify
imposition
penalty
of a
must
the
and
death
compared to
sentence on the defendant
others
more severe
Stephens,
guilty
462
of murder.” Zant v.
U. S.
found
(1976).
Georgia,
(1983);
Gregg
In Zant we a sentence of death pursuant Georgia capital sentencing imposed statute, to the finding aggravating “the of an circumstance does under which body play any guiding role the exer- apart narrowing discretion, of its from its function cise eligible persons for the class convicted of murder who are penalty.” Id., no at 874. We found constitutional death deficiency aggravating circum- that scheme because requires. stances did all that the Constitution “aggravating circumstances” is not an end it- The use of genuinely narrowing a means of the class death- self, but thereby channeling jury’s eligible persons discretion. why narrowing function not be see no reason We performed by jury findings sentencing phase at either the guilt phase. opinion in the trial or the Our Jurek v. Texas, (1976), point. establishes this The Jurek upheld penalty statute, which, Court Texas death like the narrowly categories statute, Louisiana defined the of mur- imposed. a death If ders for which sentence could be guilty the defendant a murder, found such it was re- quired impose long beyond to so as found a reason- deliberate, able doubt defendant’s acts were the de- probably continuing would fendant society, constitute threat to and, evidence, if raised the defendant’s acts response provocation. were an unreasonable the victim’s Id., at 269. We concluded that the latter three elements mitigating aspects allowed the consider unique perpetrator, crime and the characteristics of the sufficiently provided therefore discretion. opinion announcing judgment
271-274. But the noted the difference between the Texas on scheme, hand, the one *13 Georgia and the and Florida schemes discussed the cases of Gregg, supra, supra: and Proffitt, adopted statutory ag-
‘While Texas has not a list of gravating jus- circumstances the existence of which can tify imposition penalty Georgia of the death as have narrowing categories Florida, and its action may murders posed for which death sentence ever be im- purpose. serves much the same In fact, ... each of by capital the five classes of murders made the Texas encompassed Georgia statute is and Florida one statutory aggravating more of their circumstances. . . . requires Thus, in essence, the Texas statute statutory aggravating find the existence of a cir- penalty may imposed. cumstance before the death be aggravating So far as consideration of circumstances is principal concerned, therefore, the difference between penalty Texas and the other two States is that the death sentencing option potentially is an available —even —for S., a smaller class murders Texas.” U. at (citations omitted). 270-271 narrowing to us from this seems clear discussion that the
It regime capital punishment may required for be function legislature may ways: provided in either of these two it- capital offenses, narrow definition of as Texas and self jury finding guilt re- done, Louisiana have so that legislature broadly sponds or the more concern, to this provide narrowing by jury and define offenses penalty phase. findings aggravating circumstances at the discussing supra, n. Zant, also Jurek See mitigating concluding: aggravating “[I]n Texas, circum- stage at the same of the criminal stances were not considered prosecution.” “narrowing performed function” was
Here, the guilty guilt phase it found defendant three at the when provision that “the offender has a counts of murder under bodily upon great specific harm more kill or to inflict intent to sentencing person.” is also one The fact that the than aggravating required of an circumstance to find the existence constitutionally required part narrow- in addition is no aggravating ing process, circum- the fact that the and so duplicated crime does not of the elements of the stance one constitutionally is no infirm. There make this sentence question the class of scheme narrows but that Louisiana phase death-eligible al- murderers and then at mitigating circumstances and lows for the consideration requires no The Constitution of discretion. the exercise more. *14 Appeals judgment Fifth Circuit for the of the
The Court accordingly is
Affirmed. joins, with whom Justice Brennan Marshall, Justice dissenting. joins Part as to and Justice I, Stevens penalty in my all cir- by Adhering that the death view prohibited punishment cruel and unusual cumstances Eighth Gregg Georgia, and Fourteenth Amendments, (1976) dissenting), J., S. 231-241 U. I (Marshall, vacate the decision below insofar as left would it undisturbed imposed in the death sentence this case. petitioner’s if I I
Even not hold this view, did would vacate independent sentence of death for two First, reasons. jury subjected during that sentenced Leslie Lowenfield was phase penalty practices the trial to combination in courts have viewed as far coercive less sensitive situa- practices presents tions. use in of these an case un- acceptable jury risk that the returned a sentence death for having nothing proper reasons to do with constitutional con- in Second, siderations. even of coercion, absence jury’s sentence of death could not stand because it was based single statutory aggravating dupli- aon circumstance that petitioner’s underlying cated element offense. This duplication prevented sentencing Louisiana’s scheme from adequately guiding sentencing jury the discretion of the requisite this case and relieved the sense of responsibility for its As decision. we have rec- ognized frequently past, failings in the such have the impermissibly biasing sentencing process effect Eighth favor of death violation of the and the Fourteenth Amendments.
I many petitioner’s sentencing deliberations, After hours of great “having court informed the that was distress” App. and unable to reach a verdict. 17. Had the re- petitioner deadlocked, mained would have received a sen- imprisonment operation tence of life of Louisiana law. presiding judge reaching But the intervened to aid the petitioner charges judge’s verdict, now inter- vention was coercive. principles guide petitioner’s
Two should our evaluation recognizing “impartiality” First, claim. is a state diffi- cult to define and “coercion” an difficult discern in event par- situations, be on the concrete we must careful to focus *15 248 in order to assess “all the circum- of facts this case
ticular surrounding jury’s progress from deadlock to stances” unanimity. States, 446 380 U. v. S. Jenkins United curiam). (1965) acknowledged (per we often have Second, penalty unique demands a nature of the death reliability sentencings capital degree greater than in of g., proceedings. Ohio, e. Lockett v. See, criminal other (1978) (opinion Burger, joined by J., C. 586, 604 U. S. JJ.); North Woodsonv. Car- Powell, and Stewart, Stevens, (1976)(opinion Powell, olina, Stewart, JJ.). and Stevens, lipservice pays to these con in this case mere The Court portions citing and Lockett but the relevant Jenkins cerns, teachings. ignore proceeding The to their Court offers then ignoring glossing or over facts, rendition of the a sanitized “all in its examination of the circum evidence coercion sentencing per proceeding. The Court then stances” cramped application prece of our forms a mechanical essentially restricting regarding these coercion, dents on im Moreover, facts. the Court focuses cases to their challenged practice addressing pact in isolation, never each Finally, neglects effect. the Court con their cumulative to context this case affects sider how application principles forged In other contexts. approach seriously petitioner’s fails to take sum, the Court’s consequently recognize challenge fails to its force. The practices decision to condone the coercive at issue Court’s pronouncement here renders hollow our that “the decision whether a man deserves to live die must be made on scales deliberately tipped toward death.” Wither that are not (1968). spoon Illinois, 510, 521-522, 391 U. n. S. starting any point determination of coercion given opinion of Court, however, of a case. The facts promise keep examine “all circumstances,” does not its failing significant evaluating mention several events improperly trial court’s conduct influenced whether *16 jury’s decision. the First, Court treats as irrelevant all preceding polling jury events the of the and the adminis- charge. tration of the Allen Allen v. United States, 164 (1896). recognize guilt U. S. 492 The Court fails to phase petitioner’s immediately preceded trial, which the sentencing phase, shaped jury’s the collective state of mind relationship jury’s and to the court. The deliberations on guilt days. the issue of or innocence lasted 13 hours over jury After 11 hours of deliberation, the informed the court experiencing requested that it was “much distress” and to physical App. view some evidence. 16. The court refused request you go the jury and stated: “7 order to back to the room and to deliberate and arrive at a Id., verdict.” 24at added). (emphasis objected Defense counsel objection again during to this instruc- penalty phase tion and raised that the ground might on the that it have a “residual effect” on the sentencing process. jury Id., at 51. After the returned its guilt phase p.m., gave jury only verdict at 3 the court the an conducting sentencing hearing hour’s break before the sending jury p.m. to deliberate at 8:17 These events might suggested jury well have to the that the court was anx- quickly. ious for a verdict to be reached and reached That impression might support have received further when, at p.m. 11:55 day and after a total of more than 13 hours that jury requested permission night, court, the to retire for inquired: any way you and the court “Is there could continue deliberating tonight and arrive at a verdict?” at 48. background, ignores, important This which the Court to an understanding jury’s and evaluation of the reaction to the polling procedures charge and the modified Allen of the fol- lowing day. although
Second, the Court notes that was in- sentencing phase structed at the commencement of the its failure to reach a verdict would result in a life sentence sentencing hearing, rather than a second the Court fails to repeated observe that this instruction was three more times specifi- during proceeding. sent a note First, cally asking automati- a life sentence would result whether cally the court verdict, failure to reach a which from a repeated affirmatively. .responded Second, court polling jury as further de- to whether before instruction helpful. Finally, repeated court would be liberations immediately polling again immedi- after twice ately giving charge. Allen The court’s modified before failing consequences of reach a verdict reiteration again verdict-urging jury poll and before the before charge understood as ex- well have been *17 only by impose pression of reluctance a life sen- the court to to a and an admonition reach verdict. tence does not mention the refusal of defense
Third, the Court jury request specific be that the instructed that counsel’s Hyde by required In v. to return a verdict. was not law (1912), rejected States, we a claim of United by ju- jury relying to coercion on the court’s statement the “‘they conscientiously freely agree if rors that could not ” they discharged.’ upon would be at 382. We a verdict “[i]t . . concluded that is hard to believe that . with that they by promise expressly them, to made were coerced acquit they con- threat of confinement to those who were guilty they vinced were or convict those who were convinced Id., at In were innocent.” 383. the decided absence of such possibility stronger. much instruction, an coercion runs by None the above circumstances is itself a reason to jury in conclude that was coerced this case. But these as circumstances, Court, well as those recounted make “totality” light up judge practices of which we must challenged polling procedures in this case. Both the charge Allen administered the court must be examined against background, individually first and then as a cu- mulative whole. quick petitioner’s challenge
The Court makes work of polling jury Observing the court’s this case. inquiries regarding helpfulness the court’s of further “clearly independent” inquiry deliberations were of an re- garding jury’s merits, stance on the the Court concludes “ pollings that the did not ‘reveal the nature or (quoting Ante, extent of its division.’” at 240 Brasfield (1926)). States, United 272 U. S. Such a conclusion might ordinary setting, hung be accurate trial where a only ignores leads to retrial. But the Court the fact repeatedly that the this case had been instructed automatically failure to reach verdict would result in a life background knowledge, juror’s sentence. With this against vote acceptance further deliberations indicated life necessarily jury’s response sentence that would follow. polling questions very probably to the in this case thus re- vealed the nature and extent its substantive division. only acknowledge
Not does the Court refuse to polling polling in this case is similar in nature to the we con- ignores ways in Brasfield, demned it also in which this polled case worse than The court here Brasfield. increasing not once, twice, but whatever coercive effect a poll single poll would have had. Moreover, the second whit- minority jurors creating tled down the from enormous *18 pressure compared minority on holdout, the lone as to the jurors Finally, jurors of three in in this case Brasfield. identify by polls, were asked to themselves name in both ex- posing jurors minority the identities of the to the court. polling procedures Under such circumstances, used here posed greater “improper upon an even risk of influence jury” poll rejected than the we examined and in Brasfield. at 450. petitioner’s challenge
The Court’s treatment of to the charge similarly by begins Allen is dismissive. The Court suggesting validity charges “beyond that the is such dis- pute,” citing cases from of in all the Circuits which some form charge upheld. of an Allen Ante, has been at 237-238, and sweeping denigrates n. 1. This statement the serious res- 252 many expressed courts con federal1 and state2
ervations charge. cerning of the traditional Allen coercive nature ordinary reservations, criminal voiced the context These particular significancefor the instant case. The trials, have verdict-urging charge justifications time, are the for a usual expense, possible of evidence that a new trial would loss present justifications here, was where of these entail. None hung jury have a life sentence. More resulted would ordinary charge trial, Allen in an criminal an will over, way merits, one or the other on the because steer minority likely jurors for conviction as are it is as inevitably charge acquittal. made a verdict Here, the likely, have more because continued deadlock would of a life rather than outcome sentence achieved substantive sentencing hearing. simply considerations in These another in a verdict this case was that the State’s interest dicate preserv relatively the defendant’s interest weak, whereas correspondingly ing integrity dissenting of a vote strong. general reservations voiced other courts 1 (CA11) Rey, 1458, g., See, 1458, e. United States v. 811 2d 1460 F. (“The judicial against charge. Allen ... As we see modern trend ... they it, charge jurors performing are the Allen interferes with when determining important guilt role: or innocence in a close case. their most innocent unjustifiably person the risk will be convicted It increases beliefs”), denied, honestly-held juror abandoning his cert. as a result (CA10 Blandin, 1048, 1050 United States v. (1987); 2d 484 830 784 F. U. S. 1986) (“We approved the Allen instruction as permissible in the Tenth have Circuit, given during its not be urge but caution in use. ... It should Seawell, United States v. deliberations”); 1159, F. 550 2d the course of 1977) (CA9 (“Problems inherently arising from coercive Allen appeals charge have caused other courts of and state effect Allen severely charge, prohibit single its A courts to to restrict use.... coercion”) (footnotes more, impermissible at the brink of without stands omitted). Gainer, (1977) (ban- g., People See, e. P. Cal. 3d 2d 997 *19 Czachor, cases); Allen State v. ning charge in all criminal use traditional State, (1980) (same); Kersey 392, A. 2d 593 525 S. 2d 139 82 N. J. 413 W. (same). (Tenn. 1975)
253 verdict-urging charges about the coerciveness should be given special attention under these circumstances. opinion persistently Court, of the however, refuses recognize unique posture of this Instead, case. blandly factually distinguishable notes that this case is from significant jury cases, our other coercion Jenkins v. United (1965), States, 445 380 U. and United S. States v. United (1978). Gypsum analysis, Co., S. 422 States 438 U. This if recognize animating princi- called, such it be fails to ple Gypsum: jury might of both Jenkins and If the believe from the trial court’s statements or actions that the court is insisting upon way a verdict “‘one or the 438 other,’” S.,U. message poses impermissible 460, at risk of coer- posed gave here, cion. Just such a risk was a when the court verdict-urging charge knew, and indeed had just unanimity instructed, been that its failure to reach would result substantive outcome of life sentence. analytical significant The Court’s most failure, however, petitioner’s charge lies in its refusal to consider coercion piecemeal polling other than a fashion. Content procedures did not contravene and that the verdict- Brasfield urging charge Allen, satisfied the Court never considers the practices recog two tandem. Other federal courts have charge given jury poll nized that an Allen on heels poses special risks of coercion. See United States v. Sae- (CA9 1984); Chua, 725 530, Iowa, F. 2d 532 Cornell v. (CA8 1980), F. 1044, 1048, 2d n. denied, cert. (1981); App. States, Williams v. United 119U. S. D. C. (1964). 190, 193, 338 F. 2d These courts have noted poll charge, that when a is followed an Allen “the im pression inherently conveyed to the that the revela prompted giving subsequent tion of their division verdict-urging instruction and that it is, therefore, directed minority jurors.” supra, Iowa, toward the Cornell v. charge given poll n. 2. In this case, the after the ing pared minority single juror, had down the to a identified *20 feeling help juror that could not name. That to the court charge verdict-urging at him and him alone. was directed together charge polling an in this case created The and prac charged atmosphere with coercion than either far more engendered. possibly Such coercion could have tice alone strongly returned a the fact that the is evidenced gave the mere 30 minutes after the court of death a verdict charge.3 verdict-urging question prac- open whether the
It an and far closer is challenged in this case should be deemed coercive tices recognized ordinary often and criminal context. We have an practices entirely appropriate in Term reiterated last sentencing improper capital pro- may other contexts be ceedings. Maryland, n. 12 Booth v. See (1987). recognize case, however, fails to The Court this attempt capital principle no to assess how the and makes legitimacy challenged sentencing affects the context troubling only practices. failure is not because we re- This sentencings, reliability capital quire greater but also be- sentencing process capital makes the cause the nature capital challenged dangerous. practices here more sen- tencing a moral decision about whether is asked to make particular Despite individual should live or die. the ob- guide jective attempt in an that are introduced to factors jurors’ largely discretion, a sub- exercise of the theirs object argues petitioner’s to The Court the failure of counsel Allen potential polling charge suggests that their coercive or the Ante, however, acknowledge, 240. fails to “apparent.” The Court charge, already polling that at time of the defense counsel had during separate phase: a mistrial moved three times for hours, again than five once when the been out for more when had deadlock, indicating again polling its after the first sent a note would revealed an 8-to-4 division as to whether further deliberations be may renewing helpful. Defense counsel well have reasoned that his mo- Allen charge during polling unavailing. would be tions the second any case, clearly repeated demonstrate his In counsel’s mistrial motions jury’s awareness of the confusion and distress. amorphous
jective judgment. nature and volatile Given sentencing juries inquiry, reached that have of their particularly prone impasse be in their deliberations *21 me conclude This concern leads from the court. coercion charge polling case cre- Allen used in this that the unacceptable “in- risk of coercion and thus were ated an decisionmaking require in we with the reasoned consistent (footnote Maryland, supra, at 509 Booth v. cases.” omitted).
II any im- from the its verdict free had reached Even by proper that verdict still could court, influence by prior pre- principles our cases The established stand. penalty imposition when it is based of death clude the merely statutory aggravating single that circumstance on duplicates underlying have of offense. We an element repeatedly the sentencer be that the discretion of insisted eligible guided by narrowing people for the the class cognizant fully penalty of its and that the sentencer be death responsibility imposition a sentence of life or death. for the operation principles have been violated Both of these sentencing in case. scheme of the Louisiana Georgia, 408 238 in U. S. Furman v. Since our decision “meaningful (1972), required basis have that there be a we sentence] [the distinguishing for the few cases which many imposed Id., in which it is not.” from the cases consistently concurring). have that held J., 313 We (White, during aggravating statutory circumstances considered sentencing process provide one of the means which constitutionally making guided jury’s such discretion is McCleskey Kemp, g., 481 v. e. See, mandated distinctions. (1987) aggra- (describing 305 “the role U. S. guiding jury’s vating discre- circumstance (1983) (holding tion”); Stephens, v. Zant genuinely aggravating must narrow that circumstance “an Gregg eligible penalty”); persons the death for class Powell, (opinion Stewart, U. at 197 S., v. Georgia, JJ.) finding statutory- (explaining Stevens, “to consider the helps circumstances aggravating it recom- crime and the criminal before of the circumstances sentence”). mends aggra that our on today suggests emphasis Court
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the death smaller than the number of those narrowing eligi- But convicted murder. the class of death any aggra- ble offenders not “an end itself” more than vating ante, circumstances are. at 244. as Rather, See our emphasized consistently, narrowing require- cases have ment is meant to channel the discretion the sentencer. It capital sentencing jury approach forces the its task in a way, step-by-step determining first structured, whether a eligible penalty defendant is for the death and then determin- ing justify imposition. all whether of the circumstances its only narrowing making conceivable reason for a constitu- requirement structuring sentencing tional is its function in By permitting narrowing deliberations. the removal of the sentencing process altogether, function from the the Court formality entirely reduces to mechanical unrelated to the life choice between and death. relegation narrowing
The Court’s of the function to the phase guilt implicates aof trial the concerns we ex- pressed Mississippi, in another context Caldwell v. (1985). petitioner’s In Caldwell, U. S. 320 we vacated sen- prosecutor argued tence of death when had to the appellate imposition court would review the concluding correctness, death sentence for “it is con- stitutionally impermissible rest death sentence on determination made a sentencer who has been led to be- responsiblity determining appropri- lieve that the *23 ateness of the defendant’s Id., death rests elsewhere.” at jurors sentencing Here, 328-329. the were led to believe petitioner’s eligibility already for the death sentence was findings during guilt phase findings established their the — any contemplation implication at arrived without their for petitioner’s specifically sentence. Indeed, the court in- jury guilt phase structed the at the start of its deliberations: any way, possibility any discuss, “You are not to the penalties during Then, whatsoever.” Record 2283. penalty hearing, prosecutor jury twice reminded the phase ag- already during guilt one of the it had found urged applicable gravating that the circumstances State prosecu- petitioner’s at 2311, 2319. to sentence. jury might argument it have convinced the that had well tor’s responsibility no for the defend- about and hence no choice eligibilty penalty. This situation cannot ant’s for the death capital squared promise to that “a sen- with ensure be our gravity proceeds tencing recognizes of its task and Truly respon- appropriate of its awesome awareness with the Mississippi, supra, sibility.’” at 341. Caldwell v. sentencing application sum,
In of the Louisiana scheme overlap complete like there is a one, in cases where sentencing aggravating at circumstances found between previously phase the offense found at the elements principles ways guilt phase, that will violates constitutional inevitably imposition tilt the scales toward penalty. The will have an easier time con- the death State beyond necessary vincing jury to find a reasonable doubt guilt phase capital if of a trial of a offense at element finding that such a will make the defendant is unaware sentencing phase. eligible penalty at the Then the death arguing impo- time for the the State will have even easier penalty, because can remind the sition of death necessary sentencing phase, did in this case, as it already aggravating been established be- circumstances have yond The State thus enters sentenc- a reasonable doubt. already ing hearing the threshold of with the across part any jury’s eligibility, awareness on the without proceed- By permitting that line. such that it had crossed early ings ignores pronounce- case, in a the Court our not entrust the determination ment that “a State organized a man should live die a tribunal whether Witherspoon Illinois, 391 of death.” return verdict omitted). (footnote S., at 521 U.
III After of 22 a total hours almost continuous deliberations regarding petitioner’s guilt appropriate sentence, the “great in this case informed the court that it inwas dis- petitioner tress.” Had the its deadlock, broken would have been entitled to a life sentence without retrial. May p.m. Thus, 16, 1984, on Leslie Lowenfield’s life hung delicately impossible in the It balance. what know finally prompted to return its sentence of death, but practices engaged the coercive the trial court, or the prosecutor’s argument key aggravating circumstance already guilt phase, had been established at the well tipped any have the balance. Neither these has factors place presence deliberations, and their petitioner me this case convinces was denied the indi- penalty vidualized and reasoned consideration of his promises him. I Constitution dissent.