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STATEMENT OF ISSUES

I. In the Kansas capital sentencing system, the required "narrowing" is accomplished in the guilt phase; the "aggravating" factors need only qualify as "selection" factors, not "eligibility" factors.

II. A state may constitutionally relax the rules of evidence in the penalty phase.

ARGUMENT AND AUTHORITIES

I. In the Kansas capital sentencing system, the required "narrowing" is accomplished in the guilt phase; the "aggravating" factors need only qualify as "selection" factors, not "eligibility" factors.

A. Eligibility Factors and Selection Factors.

In his attack on the "heinous, atrocious, and cruel" ("HAC") aggravating factor, appellant relies on cases involving the factors that serve to define the class of murderers eligible for the death penalty. See Brief of Appellant, vol. III, at 459-460. Appellant simply assumes that these cases apply. A strong argument can be made that the HAC factor, as judicially narrowed in Kansas, passes muster under these cases. Compare Instruction 11 (reproduced in Appendix A) with Walton v. Arizona, 497 U.S. 639, 654, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990). Amicus CJLF submits, however, that it is not necessary for the Kansas aggravating factors to qualify as "eligibility" factors. Under the relevant United States Supreme Court precedents, they need only qualify as "selection" factors.

The Supreme Court's death penalty jurisprudence has taken a number of turns, as the Court has wrestled with the difficulty of establishing the appropriate amount of discretion in the sentencer. The original decision in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) was based largely on the fear that unfettered discretion provided too much leeway for racial discrimination. See Graham v. Collins, 506 U.S. 461, 479-484, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993) (Thomas, J., concurring); 506 U.S. at 500-501 (Stevens, J., dissenting). When states reacted to Furman with mandatory sentencing statutes, the Court announced a new constitutional imperative of individualized sentencing. See Woodson v. North Carolina, 428 U.S. 280, 303-305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) (lead opinion). These twin requirements of channeling discretion yet individualizing the process are sometimes referred to as being in "tension," see Tuilaepa v. California, 512 U.S. 967, 973, 129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994), and sometimes in more colorful terms. See Walton, 497 U.S. at 664 (Scalia, J., concurring).

The Court has resolved the "tension" by separating the "eligibility" decision from the "selection" decision. The channeling requirement applies to the constitutionally required narrowing of the death-eligible class. "First, States must properly establish a threshold below which the [death] penalty cannot be imposed." Romano v. Oklahoma, 512 U.S. 1, 6, 129 L. Ed. 2d 1, 114 S. Ct. 2004 (1994). The criteria used must "genuinely narrow the class . . . ." 512 U.S. at 7 (internal quotation marks omitted). "In this respect, a State's sentencing procedure must suitably direct and limit the decisionmaker's discretion ' "so as to minimize the risk of wholly arbitrary and capricious action." ' " 512 U.S. at 7 (quoting Zant v. Stephens, 462 U.S. 862, 874, quoting Gregg v. Georgia, 428 U.S. 153, 189 (1976)).

At the next stage, selecting which members of the eligible class will actually be sentenced to death, the rules are quite different. There is no channeling requirement, and "unbridled discretion" at this stage would be constitutional. See Zant v. Stephens, 462 U.S. 862, 875, 77 L. Ed. 2d 35, 103 S. Ct. 2733 (1983); Buchanan v. Angelone, 522 U.S. 269, 275-277, 139 L. Ed. 2d 702, 118 S. Ct. 757 (1998). While the state may limit the sentencer on the aggravating side, if it chooses to, it cannot preclude the sentencer from considering any factor the defendant proffers as mitigating.⁽¹⁾ The requirements are succinctly stated in Lowenfield v. Phelps, 484 U.S. 231, 246, 98 L. Ed. 2d 68, 108 S. Ct. 5465 (1988): "There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more." (Emphasis added).

The circumstance struck down in Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 98, 100 S. Ct. 1759 (1980) was invalid because it failed to perform the function required at the eligibility stage of the proceedings. That is, it "failed to narrow the class of persons eligible for the death penalty." Zant, 462 U.S. at 878 (emphasis added). The "outrageously vile" circumstance at issue was so vague that "a person of ordinary sensibility could find that almost every murder fit the stated criteria." 462 U.S. at 878. However, a factor too vague to perform the required eligibility function may still be considered at the selection phase. 462 U.S. at 878.

In Lowenfield, supra, the high court rejected an attack on an "aggravating" circumstance in a system closely analogous to the Kansas system. Louisiana had defined "first-degree murder" in a manner similar to "capital murder" in Kansas. That is, "first-degree" was limited to intentional murders in five specific, aggravated circumstances. Lowenfield, 484 U.S. at 241-242. Before the death penalty could be imposed, the jury had to find an additional "aggravating circumstance," one of which essentially duplicated one of the variants of first-degree murder. 484 U.S. at 242-244. Lowenfield argued that, as a result of the duplication, the aggravating circumstances failed to genuinely narrow the eligible class. 484 U.S. at 244.

The Supreme Court rejected the argument. The narrowed definition of first-degree murder fulfilled the constitutionally required "narrowing function." 484 U.S. at 246. "The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstances duplicated one of the elements of the crime does not make this sentence constitutionally infirm." 484 U.S. at 246.

The only case even arguably inconsistent with the above analysis is Stringer v. Black, 503 U.S. 222, 117 L. Ed. 2d 367, 112 S. Ct. 1130 (1992). Stringer illustrates the importance of the state supreme court's characterization of its death penalty law in framing the federal constitutional questions.

Clemons v. Mississippi, 494 U.S. 738, 743, 108 L. Ed. 2d 25, 110 S. Ct. 1441 (1990) had previously decided that Mississippi's unqualified HAC aggravating circumstance was error under Godfrey and Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988). In Stringer, the state made a new argument, citing Lowenfield, that Godfrey/Maynard did not apply because the required "narrowing" in Mississippi was performed with the finding of guilt of capital murder. Stringer, 503 U.S. at 232-233. The high court rejected that argument based on the state supreme court's characterization of its statute. "The Mississippi Supreme Court itself has stated in no uncertain terms that, with the exception of one distinction not relevant here, its sentencing system operates in the same manner as the Florida system . . . ." 503 U.S. at 234. "It would be a strange view of federalism that ignores the view of the highest court of a state as to the meaning of its own law." 503 U.S. at 235. Thus, it is critically important for this Court to identify with precision which step of the Kansas system performs the constitutionally required narrowing function. Is it the verdict of guilt of capital murder, as in Texas and Louisiana, or is it the finding of an aggravating circumstance, as in Florida and Mississippi?

Following this holding, there is language in the Stringer opinion that could be read to imply that an aggravating circumstance used for selection rather than eligibility is nonetheless subject to the same standard of scrutiny. See 503 U.S. at 235-236. This interpretation of this passage of Stringer does not survive later cases.

Tuilaepa v. California, 512 U.S. 967, 129 L. Ed. 2d 750, 114 S. Ct. 2630 (1994) examined the aggravating factors in the California system. In California, as in Kansas, the required narrowing is performed as part of the guilt verdict. To be eligible for the death penalty, the jury must find one or more "special" circumstances on top of the defendant's guilt of first-degree murder. 512 U.S. at 975. Additional aggravating factors are considered at the penalty phase in deciding whether to actually sentence the eligible defendant to death. See 512 U.S. at 975.

One of the challenged factors, factor (b), was " '[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence . . . .' " 512 U.S. at 976. This is strikingly similar to the circumstance deemed too vague for eligibility but valid for selection in Zant v. Stephens, 462 U.S. at 885-886: a "substantial history of serious assaultive convictions." The Court upheld this factor, with the others, rejecting the argument "that selection factors must meet the requirements for eligibility factors . . . ." Tuilaepa, 512 U.S. at 977-978.

The Court's acceptance of factor (b) cannot be explained on the basis of a distinction between "propositional" and "nonpropositional" factors, since "factor (b) [is] essentially propositional, as the Court uses the term . . . ." 512 U.S. at 981 (Souter, J., concurring). The distinction is that once the eligibility phase is over, states are allowed and even encouraged to permit sentencers to consider broad, diffuse factors in the course of the individualized sentencing that the Eighth Amendment requires. See 512 U.S. at 979-980; 512 U.S. at 983-984 (Stevens, J., concurring in the judgment).

If there had been any doubt on this distinction, it was eliminated last term in Jones (Louis) v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999). In a federal prosecution, the government alleged and the jury found two nonstatutory aggravating factors: the victim's "young age, her slight stature, her background, and her unfamiliarity with" the area; and the victim's "personal characteristics and the effect of the instant offense on [her] family . . . ." 119 S. Ct. at 2097 n. 3, 144 L. Ed. 2d at 380 n. 3.

The defendant attacked these factors on Godfrey grounds, i.e., that the victim impact factor, particularly, could apply to every case. See 119 S. Ct. at 2108, 144 L. Ed. 2d at 394. The plurality rejected this argument as applied to a factor "important only for selection purposes." 119 S. Ct. at 2108, 144 L. Ed. 2d at 394. It noted that such a proscription could not be reconciled with the approval of victim impact as an aggravating selection factor in Payne v. Tennessee, 501 U.S. 808, 115 L. Ed. 2d 720, 111 S. Ct. 2597 (1991). Jones, 119 S. Ct. at 2108, 144 L. Ed. 2d at 395. It was sufficient that the factor "directed the jury to evidence specific to this case . . . ." 119 S. Ct. at 2108, 144 L. Ed. 2d at 395.

Justice Scalia did not join this portion of the opinion. His earlier opinions make clear that he does not regard the Eighth Amendment as imposing any limitations at all after the "narrowing" phase. See Tuilaepa, 512 U.S. at 980 (Scalia, J., concurring). The plurality opinion is therefore the opinion on the "narrower grounds," and its holding that the selection factors at issue comport with the Eighth Amendment is the holding of the case. See Romano v. Oklahoma, 512 U.S. at 9; Marks v. United States, 430 U.S. 188, 193, 51 L. Ed. 2d 260, 97 S. Ct. 990 (1977).

There can be no doubt that the nonstatutory factors used in Jones would have failed the Godfrey test if that test applied. "Of course, every murder will have an impact on the victim's family and friends and victims are often chosen because of their vulnerability." Jones, 119 S. Ct. at 2108, 144 L. Ed. 2d at 394-395. The Godfrey test did not apply because the reason for it was not present. Eligibility factors must genuinely narrow the class and must not apply to all or nearly all cases because of their constitutionally required function. Selection factors have a different function and hence different requirements. They need only point the jury to pertinent, case-specific facts. See 119 S. Ct. at 2108, 144 L. Ed. 2d at 395.

B. Application to the Kansas Statute.

Application of these principles to the Kansas statutory system is straightforward. As previously noted, supra p. 4, there is a very strong similarity to the Louisiana system at issue in Lowenfield. The statute requires a finding of guilt of an enhanced degree of murder. Compare K.S.A. 21-3439 with Lowenfield, 484 U.S. at 242. As in Lowenfield, there is overlap between the additional aggravating circumstances to be found at the penalty phase and the definition of capital murder. For example, every case of contract murder, K.S.A. 21-3439(a)(2), will be a case of financial gain on the part of the "hit man," see K.S.A. 21-4625(3), and employment of another on the part of the "employer." See K.S.A. 21-4625(4). This overlap would be a problem if both stages were constitutionally required. It is not a problem, as in Lowenfield, because only one stage is constitutionally required. See 484 U.S. at 246.

The next task is to identify which step in the Kansas process performs the required narrowing. The definition of capital murder seems to be the logical choice. The constriction of the eligible class here is quite narrow, as death penalty statutes go. All seven variants require intentional and premeditated killing, thus completely eliminating the Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982) problem. The felony-murder variants are further restricted to kidnapping for ransom, sex crimes, and kidnapping a child for a sex crime, see K.S.A. 21-3439(a)(1), (4), (7), in contrast to the broad range of felonies that qualify in most states. See, e.g., Cal. Penal Code §190.2(a)(17). The definition of capital murder is narrow, clear, and based on objectively determinable facts. It has none of the problems that have plagued other states with their eligibility circumstances.

Placing the "narrowing" burden on the aggravating factors in K.S.A. 21-4625 would create more issues, as the defendant's attacks on them in the present case illustrate. These issues can be avoided, and the constitutionality of the statute established beyond question, by clearly identifying the capital murder verdict as the step which fulfills the constitutional narrowing requirement.

The Kansas "aggravating" circumstances therefore serve two functions. First, as in Lowenfield, they provide a second layer of screening for the benefit of the defendant beyond what is constitutionally required. Second, like the California factors at issue in Tuilaepa, they point the jury to facts relevant to their decision in the final selection process. Whether they "genuinely narrow" the eligible class is irrelevant to the constitutional question, because the required narrowing has already been done. The factors involve relevant facts, in understandable terms, see Tuilaepa, 512 U.S. at 976, and they do not penalize constitutionally protected activities or discriminate on suspect classifications. See 512 U.S. at 983 (Stevens, J., concurring in the judgment). That is all the Constitution requires of selection factors. The Kansas statutory system easily passes constitutional muster.

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1. Of course, the prosecution may argue and the sentencer may conclude that a particular factor is not actually mitigating in a particular case or that it is entitled to little or no weight. See, e.g., Tuilaepa, 512 U.S. at 977; Raulerson v. Wainwright, 732 F.2d 803, 807 (11th Cir. 1984); Ortiz v. Stewart, 149 F.3d 923, 943 (9th Cir. 1998). The right to have a factor considered is not a right to have it accepted.