STATE of Louisiana v. Lester JONES.
No. 94-KK-0459.
Supreme Court of Louisiana.
July 5, 1994.
Concurring Opinion July 21, 1994.
639 So. 2d 1144
Richard Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Mark D. Pethke, Asst. Dist. Atty., for respondent.
Ellis Paul Adams, Jr., amicus curiae for Louisiana Dist. Atty. Assn.
Denise LeBoeuf, Clive Adrian Stafford Smith, amicus curiae for Louisiana Crisis Asst. Center and Louisiana Death Penalty Res. Center.
John Michael Lawrence, Alan Jeffrey Golden, amicus curiae for Raymond Anthony Rawlins.
John Michael Lawrence, Kurt Joseph Goins, Alan Jeffrey Golden, amicus curiae for Brandon Haynes.
Concurring Opinion by Justice Kimball July 21, 1994.
ORTIQUE, Justice.1
The issue in the pretrial phase of this death penalty case is the constitutionality of
I.
Defendant, Lester Jones, was indicted by an Orleans Parish Grand Jury on June 18, 1992 for the first degree murder of a British tourist, Julie Stott. The murder allegedly occurred in the French Quarter on the 1100 block of Rue Chartres during the perpetration or attempted perpetration of an armed robbery on April 14, 1992.3
Defendant filed a motion in limine on December 7, 1993. The motion moved to restrain the prosecution from mentioning in voir dire, opening statement or argument that the governor retains the power to pardon or commute a life sentence, and to have the trial court declare in advance of trial that it will not charge the jury regarding to the power of the governor or executive branch to pardon or commute a life sentence. Defendant‘s motion was denied.
Defendant applied directly to this court for supervisory relief from the denial of his motion. We stayed trial and transferred defendant‘s application to the Fourth Circuit Court of Appeal. State v. Jones, No. 94-KK-0459 (La. February 24, 1994). The appellate court granted defendant‘s application for review, but denied him relief. In Re: Lester Jones, No. 94-K-0310 (La.App. 4th Cir. February 18, 1994). Noting that defendant‘s pre-trial motion attacked the constitutionality of
Thereafter, this court vacated its previously issued stay order and remanded the case to the district court. State v. Jones, 634 So.2d 838 (La.1994). The order indicated the case could proceed to trial upon the district attorney‘s stipulation that he would forego use of
II.
Defendant‘s writ application does not seek an advisory opinion on the constitutionality of
III.
In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court recognized that the penalty of death is different in kind from any other punishment imposed under the American criminal justice system. Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976). Because of the uniqueness of the death penalty, Furman holds that it could not be imposed under sentencing procedures which created a substantial risk that it would be inflicted in an arbitrary and capricious manner. Id. Where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, Furman mandates that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. 428 U.S. at 188-189, 96 S.Ct. at 2932. To minimize the risk that the death penalty will be imposed on a capriciously selected group of offenders, the decision to impose death has to be guided by standards so that the sentencing authority will focus on the particularized circumstances of the crime and the defendant. 428 U.S. at 199, 96 S.Ct. at 2937.
In 1974, in the case of Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), the United States Supreme Court held Louisiana‘s death penalty scheme then in effect failed to provide a constitutionally adequate response to Furman. State v. Sonnier, 379 So.2d 1336, 1370 (La.1979), on re‘hrg. However, on the same day Roberts was rendered, the United States Supreme Court approved the bifurcated capital sentencing procedure it reviewed in Gregg v. Georgia, supra, which divided capital trials into a guilt phase and a sentencing phase. Id. Among other procedures, Georgia‘s bifurcated scheme required the jury in the sentencing phase to consider the circumstances of the crime and the criminal before recommending a sentence of death. In Gregg, the United States Supreme Court expressly commented that such a procedure directed the jury‘s attention to the specific circumstances of the crime and focussed its attention on the characteristics of the person
In 1976, Louisiana amended its capital sentencing scheme, modeling it after the Georgia scheme approved in Gregg. State v. Sonnier, 379 So.2d at 1370. See
After these sentencing procedures were in place, this court noted that the possibility of pardon or commutation was quickly becoming a major issue in Louisiana‘s capital sentencing hearings. State v. Lindsey, 404 So.2d 466, 485 (La.1981), cert. den., 464 U.S. 908, 104 S.Ct. 261, 78 L.Ed.2d 246 (1983), re‘hg den., 464 U.S. 1004, 104 S.Ct. 515, 78 L.Ed.2d 702 (1983). This generated concern because the injection of such factors into the sentencing phase of a capital trial diverts the jurors from their primary responsibility, charges them to make decisions not proper within their duty as jurors (by speculating what a present or future governor may do) and creates a substantial likelihood that the death penalty will be imposed as a product of arbitrary factors. Id.
Since the sentencing scheme then in effect did not expressly provide for the jury‘s consideration of a pardon and commutation and, more importantly, because the purposeful injection of comments on pardon and commutation provokes the jury to speculate about future actions of governors, induces the jury to consider whether the present or a future governor would improperly pardon or commute a sentence (thereby pre-empting the governor‘s power and unconstitutionally invoking the death penalty to defeat the constitutional design of the pardon power), and motivates the jury to act out of fear of the unknown possibility that the defendant may be returned to society, we implemented an almost blanket prohibition of discussion of such matters. See 404 So.2d at 486-487. Consequently, based upon the magnitude of the potential for arbitrary jury decision making and the irrelevance of clemency to the jury‘s duty in a capital sentencing hearing, we held that,
conditions under which a person sentenced to life imprisonment without benefit of parole, probation or suspension of sentence can be released at some point in the future is not a proper consideration for a capital sentencing jury and shall not be discussed in its presence. Should a jury request information concerning the possibility of an offender‘s release, it must be informed that it is duty bound to disregard how other governmental bodies may, in their wisdom and subject to other constraints, act but, instead, must concentrate upon whether it presently feels, in light of the offender and the nature of the offense, the offender should be sentenced to death or to spend the remainder of his life in prison. 404 So.2d at 482. (emphasis added)
See also State v. Willie, 410 So.2d 1019, 1033 (La.1982) [an argument based on the law governing pardon and commutation or its administration by the governor and other executive officers is entirely inappropriate to a capital sentencing proceeding]; State v. Copeland, 419 So.2d 899 (La.1982); State v. Jordan, 420 So.2d 420 (La.1982); State v. Sawyer, 422 So.2d 95, n. 20 (La.1982) [“Prosecutors tread on dangerous ground by mentioning the availability of pardon. Even though such a remark is accurate, it has little relevance to the penalty determination, except to give the jury a complete picture of the overall scheme for punishing first degree murderers ...“], cert. granted, judgment vacated and case remanded, 463 U.S. 1223, 103 S.Ct. 3567, 77 L.Ed.2d 1407 (1983), aff‘d on
Against this backdrop, the legislature enacted Act 436 of 1993, adding section (B) to
Art. 905.2. Sentencing hearing; procedure and evidence; jury instructions
A. The sentencing hearing shall focus on the circumstances of the offense and the character and propensities of the offender. The hearing shall be conducted according to the rules of evidence. Evidence relative to aggravating or mitigating circumstances shall be relevant irrespective of whether the defendant places his character at issue. Insofar as applicable, the procedure shall be the same as that provided for trial in the Code of Criminal Procedure. The jury may consider any evidence offered at trial on the issue of guilt. The defendant may testify in his own behalf. In the event of retrial the defendant‘s testimony shall not be admissible except for purposes of impeachment.
B. Notwithstanding any provisions to the contrary, the court shall instruct the jury that under the provisions of the state constitution, the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority, commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence including the possibility of parole, and may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole. The court shall also instruct the jury that under this authority the governor may allow the release of an offender either by reducing a life imprisonment or death sentence to the time already served by the offender or by granting the offender a pardon. The defense may argue or present evidence to the jury on the frequency and extent of use by the governor of his authority.
As previously indicated, prior to the enactment of Act 436 of 1993 and the addition of section (B) to
IV.
A pardon is a matter of grace. Bryant v. Louisiana State Pardon Board, 378 So.2d 180 (La.App. 1st Cir.1979); Bedau, Hugo Adam, A Retributive Theory of the Pardoning Power?, 27 U.Rich.L.Rev. 185, 191 (1993) [“executive clemency is a power of mercy and the sentence reduction it provides are merciful acts“]; Vandirer, Margret, The Quality of Mercy: Race and Clemency in Florida Death Penalty Cases, 1924-1966, 27 U.Rich. L.Rev. 315, 316, 318 (1993). It is reminiscent of the king‘s prerogative to decide whether a condemned person lived or died. Kobil, Daniel T., Due Process in Death Penalty Commutations: Life, Liberty, and the Pursuit of Clemency, 27 U.Rich.L.Rev. 201, 202 (1993). The power of clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. Herrera v. Collins, ___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203
The executive clemency power can be and, admittedly, has been misused by the granting or denying of pardons, commutations and reprieves based on political motivations or favoritism. See Wardlaw, Jack and Lynch, Bill, “Edwards: Turned Down Offers to Buy Pardons for Prisoners,” Times-Picayune (September 24, 1986); Wardlaw, Jack, “Two Indicted in Pardon Bribe Case,” Times-Picayune (September 7, 1986) [Rep. Joseph A. Delpit, speaker pro tem of the House, and Pardon Board Chairman Howard A. Marsellus, Jr., indicted on bribery charges for allegedly attempting to sell a pardon for a convicted murderer for $130,000]; Hargroder, Charles M. “Sudden Twist in Marsellus Case,” Times-Picayune (October 6, 1987) [former chairman of the Louisiana Pardon Board, Marsellus, plead guilty to charges that he sold clemency to state prison inmates]; Associated Press, “Pardons Rise as Edwards Term Ends,” Times-Picayune (February 14, 1988); Scheinfeld, David, “Second Chances,” 201 New York Law Journal p. 2, col. 3 (January 31, 1989) [ex-president Ford pardoned an attorney jailed for obstruction of justice; the forgiven attorney‘s brother was a major Republican political contributor]; Lichfield, John, “No Deliverance in Virginia,” The Independent p. 16 (May 10, 1992) [a Virginia death row inmate whose proof of innocence was discovered 21 days after his conviction and whose execution was scheduled for the following week, replied as follows when questioned regarding his hope of receiving a gubernatorial pardon: “That‘s the one question I never answer because the death penalty is political and he‘s a politician.“] However, that power is also validly exercised in cases where newly-discovered evidence establishes innocence, where changes in the prisoner demonstrate the justice of commutation (such as the prisoner is terminally ill or has been rehabilitated), where the prisoner had moral justification for the criminal act (such as battered women‘s syndrome), where the prisoner was not wholly at fault in committing the criminal act (such as it was committed under circumstances of insanity, mental retardation, or youth), where the imposed penalty is considered unduly harsh, and/or where a pardon will heal political wounds. See generally Bedau, 27 U.Rich.L.Rev. 185; Ledewitz, Bruce and Staples, Scott, The Role of Executive Clemency in Modern Death Penalty Cases, 27 U.Rich.L.Rev. 227 (1993); “A Matter of Life and Death: Due Process Protection in Capital Clemency Proceedings,” 90 Yale L.J. 889 (1981); Schimmel, Joseph B., Commutations of the Death Sentence: Florida Steps Back From Justice and Mercy, 20 Fla. S.U.L.Rev. 253 (1992); Adams, Edward A., “Cuomo Faces Annual Ritual of Deciding on Clemency,” 208 New York Law Journal p. 1, col. 3 (December 28, 1992).
Louisiana‘s gubernatorial clemency power, which encompasses reprieves, pardons, commutations of sentences and the restoration of full rights of citizenship, is bestowed by the constitution. It is purely a function of the executive branch of government, not subject to limitation or control from the other branches. Bryant v. Louisiana State Pardon Board, supra.; State v. Mehojovich, 119 La. 791, 44 So. 481 (1907).
In the last twenty years, a Louisiana governor has commuted only one death sentence to life imprisonment. On August 17,
V.
The constitutionality of
VI.
Death as a punishment is in a class by itself. 408 U.S. at 289, 92 S.Ct. at 2752 (Brennan, J., concurring). It is unique in its severity and its irrevocability. 428 U.S. at 185-87, 96 S.Ct. at 2931; 408 U.S. at 286-291, 92 S.Ct. at 2750-2753 (Brennan, J., concurring); 408 U.S. at 306, 92 S.Ct. at 2760 (Stewart, J., concurring). Death remains the only punishment that may involve the conscious infliction of physical pain. 408 U.S. at 288, 92 S.Ct. at 2751 (Brennan, J., concurring). Hence, we fully subscribe to the United States Supreme Court‘s observation that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of capital sentencing
A. Due Process Right to a Fundamentally Fair Trial
The possibility of reprieve, pardon or commutation bears no relevant relationship to the constitutionally required focus of the capital sentencing hearing which properly is the circumstances of the offense and the character and propensities of the offender. The irrelevant instruction required by
when a jury‘s attention is diverted from its primary responsibility of weighing the circumstances of the crime and the character and propensities of the offender and thrust into speculation about the future actions of yet unknown actors, a serious possibility arises that each death sentence imposed under such conditions is the result of an interjection of an unquantifiable factor into the deliberation process, thereby rendering the decision arbitrary ... 404 So.2d at 487.
Under the required clemency instruction, one capital defendant may be sentenced to death and another to life imprisonment merely because one jury perceived the system provided a greater likelihood of commutation (with the consequence of parole) than did the other jury—an arbitrary factor unconnected to the offense or offender. A recommendation of death based on a jury prediction of the likelihood defendant will eventually be released if not sentenced to death, is an arbitrary and capricious decision lacking in fundamental fairness. California v. Ramos, 463 U.S. at 1020, 103 S.Ct. at 3463 (Marshall, J., dissenting). The gubernatorial pardoning power is plainly not a meaningful, principled basis for distinguishing a case in which the death penalty should be imposed from one in which it should not. See Id.; 463 U.S. at 1020-1021, 103 S.Ct. at 3463-3464. Rather than purposely diverting the jury‘s focus to arbitrary factors, the trial court should channel its discretion to focus on the defendant‘s character and the nature of the crime, factors which minimize the risk of capricious imposition of the death penalty. By deterring the capital jury from this goal and marring its focus,
The clemency instruction also tends to diminish the jury‘s sense of responsibility for its action. Ramos II, 207 Cal.Rptr. at 813, 689 P.2d at 443. When the jury is informed of the possibility of commutation, reprieve and pardon, the information may cause the jury to avoid its responsibility under the notion that, if it mistakenly fails to recommend mercy, the error may be corrected by the governor. See Id. citing Smith v. State, 317 A.2d 20, 25 (Del.1974). The instruction then obscures the lines separating the judicial and executive powers by inducing the jury to fail to make the proper constitutionally ordained determination in the first instance, upon a belief that it will subsequently be handled by others. See People v. Ramos, 30 Cal.3d 553, 180 Cal.Rptr. 266, 289-90, 639 P.2d 908, 932 (1982) (Ramos I), cert. granted and rev‘d, California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). The risk of improperly diminishing the jury‘s sense of responsibility by injecting thoughts of clemency is too great a hazard to chance since, through it, the punishment of death may be inflicted in error.
Purposeful injection of the clemency issue blurs the constitutional separation of powers in yet another manner, by inviting the jury to pre-empt the governor‘s commutation power by opting for the death sentence to minimize or to thwart the governor‘s use of the power. Such a jury action would defeat the constitutional design of both the clemency power and the right of due process of law. See State v. Lindsey, 404 So.2d at 487; Ramos II, 207 Cal.Rptr. at 813, 689 P.2d at 443. The constitution grants the clemency power to the governor, while the function of the capital jury is solely to sentence defendant based on the circumstances of the offense and the character and propensities of the offender. The jury should not be induced to foreclose the executive branch from subsequently deciding the commutation (and parole) issue(s). People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 209, 388 P.2d 33, 41 (1964).
A risk created by pre-emption of the gubernatorial clemency power of even greater constitutional dimension, is the jury‘s apprehension of misuse of the power could inspire it to frustrate the constitution‘s clemency scheme by recommending defendant be sentenced to death when it would have otherwise recommended a sentence of life-imprisonment. See State v. Lindsey, 404 So.2d at 487; Ramos II, 207 Cal.Rptr. at 813, 689 P.2d at 443. The sentence of death, then, is not the punishment defendant deserves but is a reactive punishment to stymie the clemency power. Due process is violated by a capital sentencing instruction which invites the jury to speculate if the executive branch will misuse its clemency power. People v. Morse, 36 Cal.Rptr. at 208-10, 388 P.2d at 40-41. Violation of due process is compounded when, as a result of such speculation, the jury recommends the punishment of death. The jury‘s duty is to decide its recommendation based upon present facts, what happens after the recommended sentence is imposed is simply not its concern. Id.
Finally, the instruction is not one with a neutral effect. Defendant‘s due process right to a fundamentally fair capital sentencing hearing requires that he should not be placed in the defensive position of having to overcome any negative impact of the clemency power jury instruction. Defendant should not be forced to defensively respond to the irrelevant instruction in order to persuade or reassure the jury that he has little hope of obtaining a commutation (i.e., he is without political clout, his history would not make him a likely candidate for commutation, or he is unlikely to be rehabilitated, educated or to become terminally ill).
Based on the foregoing reasons, we hold
B. Right to Humane Treatment
Louisiana‘s constitutional right to humane treatment is embodied in
Our state constitutional right to humane treatment embodies these
A sentence of death imposed for any reason other than the penalty is particularized to the circumstances of the crime and the character and propensities of the defendant, is arbitrarily severe, unnecessarily cruel, and disproportionate to the offense. Hence, if a jury instruction creates speculation and fear sufficient to overcome the jury‘s feelings of compassion or mercy, or predisposes it to recommend an unnecessarily severe punishment and, as a consequence, the jury recommends the sentence of death when it otherwise would not, the punishment of death is disproportionate to the severity of the crime and unconstitutionally excessive. The punishment of death would then violate the defendant‘s right to humane treatment as it is not the punishment defendant deserves.
Like the Cruel and Unusual Punishments Clause,
VII.
The heightened constitutional protections afforded capital defendants combined with the mandates of
Based on the foregoing, the ruling of the district court on defendant‘s motion in limine is reversed, the motion is granted and the case is remanded to the district court for further proceedings.
REVERSED AND REMANDED.
LEMMON, J., subscribes to the opinion and assigns additional reason.
MARCUS, J., dissents and assigns reasons.
KIMBALL, J., concurs in the result and will assign reasons.
LEMMON, Justice, Subscribing to the Opinion and Assigning Additional Reasons
I agree that
This is not to say that such an instruction should never be given. Perhaps the defense attorney or the prosecutor will make a statement during closing argument that necessitates clarification by a jury instruction, compare Simmons v. South Carolina, ___ U.S. ___, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), or perhaps a request by the jury will give rise to such a need. These questions must be decided on a case-by-case basis and are beyond the scope of the narrow issue presently before the court. Nevertheless, the trial judge flirts with reversible error when he or she mentions pardon powers and should be very cautious in handling such situations.
MARCUS, Justice (dissenting).
In California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983), the Supreme Court made it clear that an instruction regarding the governor‘s power to commute was not prohibited by the
I see no significant difference between the articles of our constitution and the federal constitution in the area of cruel and unusual punishments. Since this instruction would pass muster under the
I write separately because although I agree with the result achieved by the majority‘s opinion, I respectfully disagree in part with the analysis employed by the majority in reaching that result.
I disagree with the majority‘s implication that the due process clause of the Louisiana Constitution provides broader protection than the virtually identical Due Process Clause of the United States Constitution.1 In my view, the jury instruction required by
In Simmons v. South Carolina, 114 S.Ct. 2187 (1/18/94), the United States Supreme Court held the State of South Carolina denied the defendant due process under the federal constitution when the trial court refused the defendant‘s request to instruct the jury that “life imprisonment” did not carry with it the possibility of parole. The Supreme Court found the refusal to so instruct the jury “had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.” Id. at 2193. Under Simmons, therefore, federal due process requires trial courts to instruct juries regarding parole ineligibility because to do otherwise would skew the jury toward imposing death.
In the instant case, the requirement that the jury be instructed to consider the possibility of a reprieve, pardon, or commutation of defendant‘s sentence presents a situation which is analogous to that in Simmons. Like the trial court‘s refusal to instruct the jury that “life imprisonment” did not carry with it the possibility of parole in Simmons, the jury instruction required by
Thus, while I agree with the majority‘s observation that “[t]he possible prejudicial effect of the instruction perniciously undermines the reliability of the capital sentencing hearing and the soundness of the process by which a jury arrives at the recommendation of death,” I would emphasize that the instruction
Additionally, I disagree with the inclusion of what I consider unnecessary analysis of
Notes
Art. 905.2. Sentencing hearing; procedure and evidence; jury instructions
* * * * * *
B. Notwithstanding any provisions to the contrary, the court shall instruct the jury that under the provisions of the state constitution, the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority, commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence including the possibility of parole, and may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole. The court shall also instruct the jury that under this authority the governor may allow the release of an offender either by reducing a life imprisonment or death sentence to the time already served by the offender or by granting the offender a pardon. The defense may argue or present evidence to the jury on the frequency and extent of use by the governor of his authority.
B. Notwithstanding any provision to the contrary, the court shall instruct the jury that under the provisions of the state constitution, the governor is empowered to grant a reprieve, pardon, or commutation of sentence following conviction of a crime, and the governor may, in exercising such authority, commute or modify a sentence of life imprisonment without benefit of parole to a lesser sentence including the possibility of parole, and may commute a sentence of death to a lesser sentence of life imprisonment without benefit of parole. The court shall also instruct the jury that under this authority the governor may allow the release of an offender either by reducing a life imprisonment or death sentence to the time already served by the offender or by granting the offender a pardon. The defense may argue or present evidence to the jury on the frequency and extent of use by the governor of his authority.
Accord: A memorandum from the Louisiana Department of Public Safety & Corrections, dated August 17, 1993, indicates that in 1991 the sentences of 5 inmates convicted of first degree murder were commuted from life sentences (average time served on life prior to commutation 16.9 years) and in 1992 the sentences of 4 inmates convicted of first degree murder were commuted from life sentences (average time served on life prior to commutation 16.5 years).