*1 93,879 Nos. 93,895 Appellee/Cross-appellant, Kansas, v. Darrell State of Appellant/Cross-appellee. Stallings,
(163 1232) P.3d Opinion filed 2007. August Travis, Travis, LLC, Olathe, Cornwell, of Keck & and Carl E. Jessica J. Cornwell, Erickson, Breer, Olathe, & Travis were on the briefs for the appel- lant/cross-appellee. Lidike, Gorman, L. district A. district Sheryl deputy attorney, attorney, Jerome Kline,
and Phill were on the brief for attorney general, appellee/cross-appellant. of the court was delivered opinion *2 Darrell conviction on five Following Stallings’ Johnson, J.: murder, counts of the State the death Pur- sought penalty. suant to for allocution and over the State’s ob- Stalhngs’ request the district court to address the sen- jection, permitted Stalhngs on the issue of was tencing jury mitigation punishment; Stalhngs not sworn or to cross-examination. The could not subject agree on the death and the court sentenced to five penalty, Stalhngs consecutive hard-50 life sentences on the murder convic- tions. convictions,
When his the State Stalhngs appealed cross-ap- on the issue of whether a defendant has a to allocution pealed before the aof murder jury during penalty phase trial. The State does not but rather challenge Stalhngs’ sentencing reserved aas matter of statewide interest proceeds upon question 22-3602(b)(3). to K.S.A. 2006 subse- pursuant Stalhngs withdrew his the State’s as the quently appeal, leaving cross-appeal law, matter before us. Based on our we only currently statutory sustain the State’s cross-appeal.
STANDARD OF REVIEW Kansas, allocution in statute. See general governed by 22-3422; Likewise, 22-3424(e). K.S.A. sentenc- unique case, scheme in a death which utilizes a is a crea- ing juiy, ture of statute. See K.S.A. 2006 21-4624. Interpreting statutes involves de novo stan- interplay among 894, 977, dard of review. v. See State 272 Kan. 40 P.3d Kleypas, (2001) review). to de novo (statutory interpretation subject Moreover, constitutional does not restrict our Stalhngs’ argument review standard.
CONSTRUCTION RULES
We are well-established rules of construc- guided by statutory tion. The most fundamental rule is that we should ascertain the intent it legislature’s through statutory language employs, giv- words their v. State ing ordinary ordinary meaning. Bryan, Kan. 130 P.3d 85 When a statute is and plain effect with the arewe give responsibility charged unambiguous, intent, resisting temptation expressed legislature’s 281 Kan. not be. law or should what the should determine Bryan, 159. at in favor of the are construed statutes criminal strictly
Generally,
is decided
accused,
about the
reasonable doubt
meaning
the criminal statute.
favor of the
Kleypas,
subjected
person
“
‘issub
construction rule
this strict
Kan. at 977-78.
must be reasonable
the rule
ordinate to
judicial interpretation
”
and intent.’ State v.
to effect
and sensible
legislative design
118, 121, 105
State
P.3d 1247
279 Kan.
(quoting
McCurry,
[1995]).
The Kansas first, to allocution in two statutes. defendant’s general “Allocution,” 22-3422, entitled states: K.S.A. informed the court “When the defendant for he must be appears judgment, or the of the court and asked whether he has of the verdict of jury, finding should not be rendered. If none is shown cause to show why any legal judgment added.)
the court shall the defendant.” judgment against (Emphasis pronounce 22-3424(e), re- The second pertinent statutory provision, cites: (1) sentence the court shall: Allow the attorney “Before prosecuting imposing (2) court, afford counsel an if the so
to address attorney requests; prosecuting defendant; (3) allow the victim or such on behalf of the speak to address the as the court deems members of the victim’s family appropriate court, and address the if victim or the victim’s so family requests; defendant ask wishes make a statement on personally defendant if own and to evidence in present any mitigation punish- defendant’s behalf added.) ment.” (Emphasis statutes, Those which our current general sentencing predate laws, state that the defendant has the clearly court, i.e., address the The obvious reason sentencing judge. for that the defendant direct his or her remarks to the providing court is that in cases the decides the sentence to noncapital judge be without from the imposed any input jury. contrast, created a legislature separate jury sentencing for murder cases which tire State is
procedure seeking K.S.A. 2006 21-4624. If a defendant is penalty. Supp. murder, with must file a written charged prosecutor notice of the State’s intent to seek the death K.S.A. 2006 penalty. 21-4624(a). If a defendant who is at least 18 old and Supp. years murder, retarded is convicted of the State can mentally move before a to deter- separate sentencing proceeding mine whether the defendant shall be sentenced to death. K.S.A. 21-4624(b). In that evidence Supp. separate proceeding, any relevant, the court deems under the regardless admissibility evidence, rules be matters related to may presented, including 21-4625, circumstances of K.S.A. which the State aggravating identified, has circumstances; no tes- previously any mitigating the defendant shall be admissible at timony by any subsequent criminal 21-4624(c). K.S.A.2006 At the conclu- proceeding. evidence, sion of the the district court is to provide oral and written instructions to its deliberations. K.S.A.2006 guide 21-4624(d). *4 “If, vote, unanimous the finds a by reasonable doubt that or jury beyond one more of the circumstances enumerated in K.S.A. 21-4625 and aggravating amendments and, further, thereto exist that the existence of such circumstances is aggravating exist, circumstances which are outweighed by any found to mitigating added.) defendant shall be sentenced to death.” K.S.A. 2006 21- (Emphasis 4624(e).
However, the verdict of the the trial court notwithstanding jury, is to review the death verdict “to ascertain whether required juiy’s evidence,” and, of such sentence imposition supported by not, ... to life without shall the sentence if “the court modify shall be im- and no sentence of death of parole, possibility 21-4624(f). The statute does not men- K.S.A. 2006 Supp. posed.” allocution. tion
DISTRICT COURTS RULING that the district court the State contends
On inaccurately appeal, . . . of allocution in front of found “had right Stallings Al- in its Order without under oath.” Regarding being locution, that, it was the district court although going recognized the issue of miti- to address the permit Stallings regarding of is not a authorized Kansas “[t]his gation punishment, al- law.” The noted that Kansas law court recognizes but “that has little locution sentencing judge, opined in a murder where the not the case jury, judge, meaning makes the decision whether to the death penalty.” impose allocution,
In an apparent attempt give meaning Stallings’ while the State’s concerns about allowing addressing unsworn, to make an statement to the unchallenged factfinding the court crafted its own solution. The court ruled jury, sentencing that comments would be limited to the issue of Stallings’ mitiga- tion; that he would submit the substance of his statement writing advance; to the court in would be Stallings specifically pre- cluded from his dissatisfaction with current or former addressing counsel and the evidence for his mental regarding guilt, except committed; state at the time were non- killings Stallings’ with the court’s would result in termi- compliance requirements statement; his nation of and that statement woüld occur Stallings’ before the attorneys’ closing arguments. discussing permis- sible the district court’s order topic mitigation punishment, referred to the instruction specifically following pattern language: circumstances are those which in fairness be considered ex- as “Mitigating may or or moral or blame or which tenuating reducing degree culpability justify death, sentence of less than even do not or excuse the offense. they though justify added.) can be a Mercy mitigatingfactor.” (Emphasis itself STATUTORY AUTHORITY out,
As the State allocution statutes points general plainly the defendant an address provide *5 court, Likewise, not the the death sen- sentencing jury. penalty does not establish a of allocution before tencing procedure right from the defendant’s to jury, separate apart right testify invites us to refrain from during evidentiary phase. Stallings statutes strictly judicially construing expand statutory unsworn, law so as to allow an statement to the death unchallenged We decline the invitation. penalty jury.
With to allocution before the declares respect judge, Stallings to be in a death case because the right meaningless penalty has determined the sentence. That is tem- already argument 21-4624(f), to some extent K.S.A. 2006 which in- pered Supp. vests the with the final judge authority impose Further, 22-3422, or to it to life without K.S.A. modify parole. “Allocution,” entitled the defendant an merely gives opportunity to answer “whether he has cause to show any legal why judgment should not be rendered.” That to show cause is effected legal when the murder convict is an to address given opportunity who is the sole arbiter of judge, legal questions.
However, 22-3424(e) a Kansas defendant’s expands of allocution to include a statement on his or her own making Webb, behalf. See State v. 242 Kan. P.2d contends this would effect “a Stallings statutory provision very hollow of allocution” unless the murder defendant However, addresses the statement we can sentencing jury. not rewrite that statute to add a death in order penalty exception the defendant an allocution which is more to give opportunity his or even one which is more to our The liking liking. only way reach such a construction would be to 22- declare that K.S.A. 3424(e) needs to be reconciled and into workable brought harmony with the death K.S.A. 2006 21- penalty sentencing provision, 4624. we decline to manufacture where disharmony none exists. worded statutes with the plainly actually provided Stallings to make two statements and self-serving presentations evidence. K.S.A. 2006 mitigating During jury proceedings, 21-4624(c) him to all evidence permitted present probative his own immunized As the dis- mitigation, including testimony. noted, circumstance,
trict court
is a
which would
mercy mitigating
*6
Thus,
make defendant’s
relevant
Stall-
mercy
testimony.
plea
could have addressed the
evi-
ings
jury
presented mitigating
dence
as well as
during
evidentiary phase,
addressing
judge
to the court’s formal
of sentence.
prior
imposition
Granted, this form of “allocution” to the
from the witness
jury
stand
that the defendant be sworn and
to cross-
requires
subject
examination. Those
could
have a
requirements
arguably
chilling
effect on a defendant’s decision to “allocute” before the
be-
jury
cause of fear
cross-examination. Some
prosecutor’s
might
find
which
or
unacceptable any procedure
hampers
discourages
defendant’s
to the
for his or her
fife.
own
plead
However, the
is the architect of the death
So
legislature
penalty.
itas
within constitutional
long
stays
parameters,
legislature
for the basic fairness and
or lack
solely responsible
humanity,
thereof, with which the draconian
of death is meted
punishment
out. We must refrain from
this case based
our own
deciding
upon
of what the law should be.
perceptions
accord,
most of the state and federal courts
presented
allocution statute
to the court and a
language referring
separate
death
that is silent on allocution have
penalty sentencing provision
concluded that a defendant has no
to allocution in
statutory right
front of the death
See United States v.
428
penalty jury.
Purkey,
738,
(8th
F.3d
2005)
761
Cir.
that the
(concluding
plain language
of the federal allocution rule does not
to allocution
grant
Barnette,
before a
United
803,
(4th
States v.
211 F.3d
820
jury);
2000)
Cir.
that the federal allocution rule did not address
(stating
allocution before death
Hall,
United States v.
152
penalty juries);
381,
(5th
F.3d
1998),
392-97
Cir.
cert.
(1999)
denied
People
(1988)
of the allocution
P.2d
nothing
language
(finding
de
intent to allow
that would
statute
legislative
suggest
sentenc
allocution
from
fendants the
separate
Colon,
scheme);
864 A.2d
State v.
Conn.
ing
(2004)
allocution and the death
that the rule
pen
allowing
(noting
a defendant’s
statutes were both silent regarding
alty sentencing
on the
to allocution before
relying
for the
the capital sentencing
procedures
legislature’s specificity
342, 375-76, 430
scheme);
Gaines,
N.E.2d 1046
88 Ill. 2d
People
exclude
that the statute was amended
specifically
(noting
837 S.W.2d
State v.
death
Whitfield,
penalty proceedings);
(Mo. 1992)
did
extend to
the allocution statute
(deciding
Green,
336 N.C.
without
State v.
analysis);
penalty juries
*7
192, 443
(1994)
which
14
on the
S.E.2d
statutory language,
(relying
with
statute for death
established
proceedings
separate
statute);
521
the allocution
Com. v.
out
Abu-Jamal,
incorporating
188, 212,
(1989)
on the
of the
Pa.
Further, one can intuit a rationale for an allocution to omitting of the evidence in a death juiy following presentation pen- is asked to determine whether the evi- alty sentencing. juiy dence of one or more presented supports finding aggravating circumstances and then to whether circum- weigh any mitigating stances found to exist circumstances. One outweigh aggravating can that a be confused as to how the perceive lay juror might unsworn, defendant’s statements should factor into unchallenged calculus, i.e., whether to such statements *8 factfinding give equal treatment with the evidence from the witness stand. produced
Even brief the need for Stallings’ recognizes “[s]etting parame- ters die line,” [to defendant’s statement albeit he keep] capital does not that believe the defendant must be sworn or subject cross-examination to effect the Rather, needed Stall- safeguards. court, that the here, district as it did can restrict the ings suggests content of the defendant’s statement and screen the pro- statement for comments. While that posed any inappropriate may true, does not favor us with an of how we Stallings explanation get of a of permissible parameters point defining law com- without new statement to
defendant’s cutting cloth. from whole pletely crafted a commendable
The district court below compromise it of the when interests permitted Stallings parties competing the restrictions and address the oversight jury, subject we must answer question presented judge. presiding have the that the court did not statutory authority by finding simply to do so. CONSIDERATIONS
CONSTITUTIONAL
before the death
contends that his
to allocution
right
Stallings
matter of due
both as a
is a constitutional
guarantee,
penalty
There is scant
and of
We disagree.
sup-
equal protection.
process
to be a constitu-
of allocution
for
general
finding
right
port
to ad-
even
tional
less support
extending
than the
rather
jury,
sentencing judge.
dressing
penalty
Webb,
the historical function and de-
In
Herd explained
Justice
so,
that the United
he noted
of allocution.
doing
velopment
States,
Court, in Hill v. United
368 U.S.
States Supreme
417,
468,
(1962),
reh. denied
Since
a defendant’s
for allocution before
denying
request
a constitutional due
violation.
court in a
case is
process
noncapital
(9th Cir.),
Estelle,
cert. denied
957 F.2d
Boardman
(4th
904 (1992);
586 F.2d
506 U.S.
Ashe v. State of N.C.,
1978). However,
with a
we are not
Cir.
question
presented
allocution, but rather with the
of when
denial of
question
complete
occur.
and before whom the allocution should
Pointedly,
extend its constitutional due
Fourth Circuit did not
process
defendant is entitled
mean that a
murder
to allocution to
unsworn,
statement to the death
to make an
unchallenged
Barnette,
trial
denial of a
751 unsworn defendant’s to make statements to the request capital death without them to cross- penalty sentencing jury subjecting Likewise, examination). we conclude had no due Stallings pro- cess to address jury. right makes a at an also Stallings cursoiy attempt equal pro- mounting The tection substance of his is contained in argument argument. one as follows: paragraph, in
“There is no rational basis defendant’s [sic] non-capital allowing right allocution to the but to it to If defendants. deny party capital anything, defendants deserve a level and constitutional safe- heightened scrutiny Further, concerns about comments to can be guards. inappropriate alleviated herein. limits discussed Without justification, parameters violates Protection.” differing rights Equal first an claim is to deter step analyzing equal protection classification, mine the if the nature of legislative legislative classification does not a class a or burden funda suspect target mental the court rational See a basis test. State v. right, applies Limon, 280 Kan. 122 P.3d Where Stallings’ that, allocution, is the Kan argument disintegrates respect sas has created different classes. All convicted Legislature per sons are treated all have the to allocute equally they before the sentencing judge. does not about the classification
Stallings
complain
legislative
a
murder
entitled to a
determi
whereby capital
nation on the death
whereas
defendant has
penalty,
noncapital
no
Thus,
entitlement to
on
what
jury input
sentencing.
Stallings
wants is for us to
allocution statutes
actually
interpret
general
to create a
that will
classification
treat
murder
legislative
defendants
We
find no merit
differently.
cursory
Stallings’
equal
Gaines,
claim. Accord
Ill.
2d at 380
protection
(rejecting cap
ital defendant’s claim that the denial of allocution before a death
Colon,
violated his
see also
penalty jury
equal protection);
N.E.2d 1253 cap- protection (rejecting equal a death allocution before ital defendants jury). penalty seeking
CONCLUSION the a murder has that
Our statutes capital provide not Our do statutes of allocution before judge. make an a murder defendant to a for mechanism capital provide unsworn, The the death statement to jury. penalty unchallenged or for bears sole op- allowing denying responsibility legislature to the death murder defendant for a plead capital portunity or is no his or her life. There common-law penalty spare criminal which overrides the other legislative prescription not violate a murder scheme does Our statutory procedure. must be The State’s defendant’s constitutional rights. cross-appeal sustained. sustained.
Cross-appeal I dissent from majority J., dissenting: respectfully ROSEN, a death sentenc- excludes allocution before which opinion, not does from the to allocution. dissent My statutory right ing jury Rather, in allocution case. I believe seek privilege cases the same allocution in should be meaningful given as all statements authorized our Code status other allocutoiy by ma- with the in the Criminal Procedure. My disagreement analysis in with its of the term “court” as used lies definition jority opinion 22-3424(e). the term K.S.A. The has narrowly majority interpreted “court” to other statutes mean sentencing judge. defini- the Kansas Code of Criminal Procedure broader require as well tion of the term “court” includes sentencing jury as the sentencing judge. 22-2201 direction meaning provides interpreting Procedure, in the Kansas Code of Criminal
of words found stating: code, “(1) in this this such words and as are defined phrases interpreting definitions, their unless a article shall be indicated partic- meanings given ular context a different meaning. clearly requires “(2) in the Words not defined in this code but which are defined or phrases when a shall have the therein par- Kansas criminal code meanings except given ticular context different requires meanings. clearly “(3) used in Words and this code and not defined be shall phrases expressly rules the construction of this construed statutes of governing according state.” “court” is defined in term the Kansas Code
Although Procedure, Code, it is Criminal defined the Kansas Criminal “(a) K.S.A. 21-3101 et K.S.A. 2006 21-4602 seq. provides: ‘Court’ means court to sentence jurisdiction having power offenders for violations of the laws of this state.” 22-2201(2), to K.S.A.
Pursuant the definition of “court” in K.S.A. 22- 21-4602 to the term as it is used in K.S.A. applies 3424(e). 22-3424(e) context of K.S.A. does not re- particular different than that K.S.A.21-4602. Under quire meaning given statute, penalty sentencing legislature gave *11 the to sentence defendants convicted of murder. power capital Thus, 21-4624(e). K.S.A. 2006 the term “court” as used Supp. 22-3424(e) K.S.A. includes the in a death juiy penalty sentencing because has the and to sen- proceeding juiy jurisdiction power tence offenders for murder. defi- capital Although majority’s of nition is con- defendants “sentencing judge” appropriate murder, of victed crime other than its narrow definition any fails to harmonize the term definition of the “court” with statutoiy to in the death authority given juries penalty sentencing scheme. 22-3424(e)
K.S.A. states: (1) “Before sentence the court shall: Allow the imposing prosecuting attorney court, (2) address if the so an afford counsel prosecuting attorney requests; defendant; (3) on behalf of the allow the victim such speak or of members the victim’s as the court deems family address appropriate court, if the victim or the victim’s so and address the family requests; and ask the defendant if the personally defendant wishes to make a on statement the defendant’s own behalf and to evidence present any mitigation punish- ment.” When the term “court” in 22-3424(e) K.S.A. interpreted 22-2201(2) accordance 21-4602, with K.S.A. and K.S.A.2006 Supp. it is clear that the intended to allocution allow for all legislature defendants, those whose sentences are a determined including by rather than a to allocution es- juiy was judge. statutoiy right sen- death enactment of the in 1970 tablished penalty prior 1990, 22-3424; 129, L. ch. sec. L. ch. See scheme. tencing was the sole au- time, court the district 4. At that sec. judge a defendant’s sentence to determine with the vested power thority defendant. When legis- and against judgment pronounce 1990, it did not law in enacted the death lature sentencing penalty the defendant’s intent to statutory right demonstrate abrogate had been determined sentence the defendant’s before to allocution Rather, the provided legislature authority. sentencing by in K.S.A. term “court” of the definition Supp. broad enough 21-4602(a) to penalty sufficiently incorporate 22- in K.S.A. as set forth to allocution in the statutory right 22- in K.S.A. Thus, “court” as used 3424(e). the term interpreting 3424(e) include both sentencing juries sentencing judges intended as it was to allocution maintains initially statutory right our legislature. addition, harmonizes such an interpretation 21-4624(b), defendants to waive authorizes which Supp. 21-4624(e), K.S.A. 2006 thereby jury, for allocution an all defendants equal opportunity giving of whether their sentences to the determination regardless prior or to be sentenced choose jury. Although by judge they “ ‘ “must be construed that statutes together majority recognizes har them into workable with a view of bringing reconciling ’ ” Revenue, Pieren-Abbott v Kansas if Dept. mony, possible,” (2005), of the its 106 P.3d 279 Kan. interpretation K.S.A.2006 does not harmonize to allocution statutory right *12 21-4624(e). re Such 21-4624(b) with K.S.A. 2006 harmony Supp. a to allocution before if defendant is entitled a capital quires before a to the same he or she is entitled sentencing judge, sentencing jury. unedited words is the to
The
of allocution
speak
mind,
ears,
defendant to the
from the
of the
directly
Kps
pass
it be a
or
whether
the
heart of
jury.
judge
authority,
sentencing
and not a
to a
allocution
sentencing
sentencing judge
Restricting
standard. The ma-
and irrational double
creates a confusing
jury
However,
dou-
a clear
no
maintains that there is
disharmony.
jority
ble
when a
can hear certain
standard exists
state
judge
allocutory
decision,
before
a
ments
while a
making sentencing
sentencing jury
the same
not consider such
exactiy
charged
responsibility may
in
statements
their decision
deci
“[Consistent
making process.
is
when one decisionmaker
consider
sion-making impossible
may
information forbidden to another.” McGautha v.
California,
(1971) (Brennan,
L. Ed.
U.S.
2d
The of allocution is crucial. If it is an to be timing in factor must it occur be meaningful sentencing procedure, fore the nature of sentence has hardened a into fixed immu after such is a cruel sham. If a tability. Anything hardening jury sentence, has the determine the defendant’s the de authority fendant must have the make his or her for opportunity plea before it determines his or her sentence. Allo mercy cution scheme after the has returned capital sentencing its verdict on is a more than sentencing meaningless formality —“no State, 213, 215, 647 an Tomlinson 98 N.M. P.2d empty gesture.” the defendant’s sentence for (invalidating kidnapping and armed because the did not robbery sentencing judge give defendant an for allocution sen opportunity prior imposing tence). this concern that K.S.A. 2006 majority tempers by noting 21-4624(f) the final
Supp. gives judge authority imposing 22-3424(e) defendant’s sentence and K.S.A. gives cap- ital offender an to allocute before the judge pro- nounces sentence. 21-4624(f) K.S.A. 2006 does not discretion consider the defendant’s give judge plea 21-4624(f) mitigation. provides: the verdict of the the trial court shall review “Notwithstanding juiy, any jury verdict a sentence of death imposing hereunder to ascertain whether the impo- such sition of sentence If evidence. supported by court determines that evidence, of such sentence is imposition the court shall supported the sentence and sentence the life modify defendant to without the possibility and no sentence of death parole, shall be hereunder. Whenever the court imposed enters a verdict of the judgment the court modifying shall set jury, forth its reasons for so a written memorandum which shall doing become part of the record.” *13 756 the discretion
This statute
determining
only gives
judge
is
of the death
the
whether
by
imposition
penalty
supported
jury’s
the
to consider additional
It does not allow
the evidence.
judge
for
the defendant’s
circumstances or
mercy pur
plea
mitigating
22-3424(e)
it
authorize the
because
does not
suant to K.S.A.
judge
If the
finds
factors.
the
and
judge
aggravating
mitigating
reweigh
verdict, it must sentence the
that
the
the evidence
jury’s
supports
21-4624(e)
that
See
2006
to death.
offender
(stating
the
if the
finds
shall
sentenced
death
the defendant
be
the
are not
circumstances
mitigating
outweighed
aggravating
for
an
circumstances).
defendant
opportunity
Allowing
her
is not
the
his or
sentence
before
allocution
judge pronounces
an
for
the
allowing
equivalent
Rather, “that
al
form of
allocution before
death
juiy.
penalty
fixed the
since
verdict
locution [is]
[has]
merely
jury’s
vestigial:
death,
be
before a
would
sentence of
defendant’s speech
judge
Zola,
384, 429, 548
ritual.” State v.
A.2d 1022
but a
hollow
N.J.
further
constru-
Death
supports broadly
penalty jurisprudence
in a
in K.S.A.
“court”
22-3424
include
ing
sentencing jury
case.
to the United States
Court:
Supreme
According
from
other which
be
“Death is a different kind of
may
any
imposed
punishment
defendant,
of view
it
different
in this
. . . From the
of the
is
country.
point
view of
action of
both
and its
From
society,
its
point
severity
finality.
its
differs
from
the life of one of
citizens also
dramatically
sovereign
taking
and to
state
It is of vital
to the defendant
other
action.
any
legitimate
importance
be,
the death sentence
decision to
community
any
impose
appear
Alabama,
be,
U.S.
rather
or emotion.” Beck v.
based on reason
than caprice
625, 637-38,
392, 100
65 L. Ed. 2d
S. Ct.
a statute
(invalidating
included
if the
the court from
on lesser
crimes
instructing
prevented
murder,
Florida,
Gardner v.
defendant was
charged
quoting
349, 357-58,
[1977]).
51 L.
This basic of common of principle humanity applies regardless of the crime nature or character of the defendant on trial. atrocities, of of some most heinous Perpetrators humanity’s notably the 11 in defendants who the murder of Nuremberg participated victims, innocent, of millions were an powerless given opportunity to make unsworn statements to the tribunal to prior sentencing. Tribunal, Charter International Section Nuremberg Military of V, (1945). Article Such a was to afforded Herman Goe- 24(j) Hess, Albert in current times to Saddam Rudolph ring, Speer, Code Criminal Procedure (at [1969]) Hussein (Iraqi sentencing of to submit statements is in can but phase, right generally writing oral). also be It is mass these murderers scarcely imaginable should available to Kansas those defen- rights possess legal dants under our murder statutes. prosecuted capital Interpreting 22-3424(e) the term “court” in K.S.A. to include dismisses notion that law Kansas to com- willing degrade mon of those convicted of humanity point denying murder the for before their sentencers. plead mercy Indeed, this with the intention interpretation comports legislature’s to treat convicted of crimes and “in accordance with persons justly characteristics, needs, their circumstances, individual and poten- 21-4601, tialities.” K.S.A. K.S.A. 22-2103. “The need each defendant in a case with that treating degree respect due the of the individual uniqueness is far more than in important noncapital cases. A of flexible variety work techniques probation, to name parole, furloughs, — remedies, a few—and various be postconviction available an initial may modify sentence of confinement The cases. or noncapital corrective nonavailability mechanisms with modifying an executed respect sentence underscores the need for individualized consideration as constitutional in im- requirement Ohio, 973, sentence.” Lockett v.
posing
438 U.S.
57 L. Ed. 2d
758
its
rationalizes
decision
by presuming
jurors
majority
unsworn,
be confused
the defendant’s
would
unchallenged
Court has en-
I
The United States
statements.
Supreme
disagree.
sen-
trusted
making
juries
responsibility
v.
472 U.S.
320,
Caldwell Mississippi,
See,
decisions.
e.g.,
tencing
v.
231,
(1985);
341,
L.
2d
penal system —a
*15
mark the
of a
‘the
standards of
that
decency
maturing
reflect
progress
evolving
”
Illinois,
McGautha,
202
v.
391 U.S.
402 U.S. at
Witherspoon
(quoting
society.’
Dulles,
86,
776,
[1968],
510,
Ed.
88 S.
and
U.S.
20 L.
2d
Ct. 1770
Trop
630,
[1958]).
2 L. Ed.
78 S.
2d
Ct.
its
States
Court further
confi
The United
Supreme
expressed
them,
in
rather than
to balance
dence
juries by requiring
judges,
factors related to sentence enhance
and aggravating
mitigating
v. New
See,
466, 147
530 U.S.
L. Ed.
ment.
Apprendi
Jersey,
e.g.,
(2000).
In that transferral of the function
2d
S. Ct.
to
the Court did
envision
from judge
juiy, surely
sentencing
the material
that such
would be
selective restriction of
juries
“In
on their
as
the face
allowed
hear based
status
“lay” jurors.
in favor
it is dif
of the State’s forceful
pleas
penalty,
...
statement
ficult
briefest
accept
argument
de
the defendant would
a fatal emotionalism into
inject
jury’s
v. Zola
liberations.” State
Davis, in the dissent. J., joins foregoing