PEOPLE V. CHELSEA KORWATCH

Fact Pattern:

In 2010 a website launched on the dark web operating at the URL www.GaultsGulch.yg. Gault’s Gulch was a site accessible only by a Tor browser*, which allowed users to buy and sell goods and services using Bitcoin**. Gault’s Gulch operated under the motto “everything at a price” and allowed for peer-to-peer transactions. Although the site allowed for peer-to-peer transactions it was maintained by a user known as “Captain Taggart,” who received a small cut of all deals.

Gault’s Gulch boasted thousands of items for sale that are illegal in some countries, ranging from fringe collectors’ items such as Nazi memorabilia (which is illegal in France) to bootlegged movies and software (which is illegal in member nations of the World Patent Treaty which does not include Taiwan , Argentina, and several others). Additionally the site served as a hub for people selling items that are illegal in all nations such as illicit drugs and violent services such as murder-for-hire.

In 2013, Captain Taggart posted a “buy” item offering $50,000 to any person who killed Casey Bilty, an officer of the Northrop Police Department who had been acquitted in the shooting death of a suspect in a drug bust linked to Gault’s Gulch. Given the risky and unusual nature of the posting, Captain Taggart breached the standard protocol of paying in Bitcoin and offered to provide $10,000 cash up front and $40,000 upon completion. The bid was accepted by a user known as Pancakes.

While on duty Officer Bilty was killed by an assailant, Kevin Santana, who was arrested during the attack. As part of a plea deal, Santana admitted to being the Gault’s Gulch user known as Pancakes and gave police a description of Captain Taggart. Using facial recognition software law enforcement was able to match the drawing to publicly available social media photographs to identify Chelsea Korwatch, a then 19 year old computer science student.

After obtaining a warrant for her arrest, police sought to capture her in the library of her university while her laptop was open, but immediately before police grabbed her she slammed her laptop shut. When law enforcement opened her laptop they discovered that it was heavily encrypted. After her arrest, the forensic investigators were unable to breach the encryption and police forced Korwatch to enter her password.

A search of her hard drive revealed that Korwatch was in fact Captain Taggart. She was charged with and convicted by a jury of 4,000 counts of conspiracy to sell narcotics and one count of conspiracy to murder a police officer, a capital offense in California. At trial the District Attorney presented evidence gathered from Korwatch’s computer. Kevin Santana did not testify at trial. Upon conviction Korwatch was sentenced to life in prison for conspiracy to sell narcotics and sentenced to death for conspiracy to commit murder of a police officer.

*Tor is a protocol which encrypts data and routes internet traffic through intermediary servers which anonymize IP addresses before reaching a final destination. ** Bitcoin is a cryptocurrency not backed by any sovereign nation, which acts like digital, untraceable cash. Questions Presented:

Issue 1: Does forcing an individual to decrypt a hard drive constitute an act of compelled self- incrimination in violation of the 5th Amendment?

Issue 2: Does California’s death penalty practice constitute cruel and unusual punishment in violation of the 8th Amendment?

Case Library:

• 5th Amendment to the United States Constitution • 8th Amendment to the United States Constitution • Fisher v. United States • Gregg v. Georgia • Roper v. Simmons • United States v. Hubbell

Caution As of: December 12, 2016 8:27 PM EST

Fisher v. United States

Supreme Court of the United States November 3, 1975, Argued ; April 21, 1976 * No. 74-18

Reporter 425 U.S. 391 *; 96 S. Ct. 1569 **; 48 L. Ed. 2d 39 ***; 1976 U.S. LEXIS 98 ****; 76-1 U.S. Tax Cas. (CCH) P9353; 37 A.F.T.R.2d (RIA) 1244

* Together with No. 74-611, United States et al. v. Kasmir et al., on certiorari to the United States Court of Appeals for the Fifth Circuit.

Kyle Smith Page 2 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****98

Amendment was limited to prohibiting the use of FISHER ET AL. v. UNITED STATES ET AL. physical or moral compulsion exerted on the person asserting the privilege. The clients' privilege under Fifth Prior History: [****1] CERTIORARI TO THE UNITED Amendment was not violated by the enforcement of the STATES COURT OF APPEALS FOR THE THIRD summonses because enforcement against a client's CIRCUIT lawyer could not compel the client to do anything, particularly not to be a witness against himself. The Disposition: The court affirmed the judgment of the documents were not the clients' private papers. The Third Circuit and reversed the judgment of the Fifth judgment of the Third Circuit was affirmed. The Circuit. The accountant's documents at issue were not judgment of the Fifth Circuit was reversed. privileged either in the hands of the lawyers or of the clients since papers demanded were not clients' private Outcome papers; production of the documents would involve no The court affirmed the judgment of the Third Circuit and incriminating testimony within the protection of the Fifth reversed the judgment of the Fifth Circuit. The Amendment. accountant's documents at issue were not privileged either in the hands of the lawyers or of the clients since Core Terms papers demanded were not clients' private papers; documents, papers, subpoena, cases, taxpayers, production of the documents would involve no incriminating, records, self-incrimination, testimonial, incriminating testimony within the protection of the Fifth privacy, producing, private papers, summons, Amendment. authentication, compulsion, compelled production, attorney-client, contents, immunity, partnership, LexisNexis® Headnotes disclosure, privileged, demanded, protects, seizure, legal advice, documentary, compulsory, seized, Constitutional Law > ... > Fundamental Rights > Procedural attorneys Due Process > Self-Incrimination Privilege

Case Summary HN1 U.S. Const. amend. V provides that no person shall be compelled in any criminal case to be a witness against himself. Procedural Posture Certiorari was granted to cases from the United States Constitutional Law > ... > Fundamental Rights > Procedural Court of Appeals for the Fifth and Third Circuits to Due Process > Self-Incrimination Privilege resolve a conflict created by opposing judgments regarding whether a summons directing an attorney to HN2 U.S. Const. amend. V is limited to prohibiting the produce documents delivered to the attorney by a client use of physical or moral compulsion exerted on the for purpose of getting legal advice was enforceable over person asserting the self-incrimination privilege. claims that the documents were immune from summons in the hands of the client under the Fifth Amendment. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege Overview In two separate cases, following notice of investigation HN3 The privilege under the U.S. Const. amend. V is of possible civil or criminal liability under federal tax never intended to permit a person to plead the fact that laws, the clients obtained documents relating to the some third person might be incriminated by his preparation of their tax returns by their accountants. The testimony, even though he were the agent of such clients transferred the documents to their lawyers. The person The amendment is limited to a person who shall Internal Revenue Service served summonses on the be compelled in any criminal case to be a witness attorneys for production of the documents. The against himself. It is extortion of information from the attorneys contended that enforcement of the accused himself that offends a court's sense of justice. summonses would involve compulsory self-incrimination of the clients in violation of the Fifth Amendment. The Constitutional Law > ... > Fundamental Rights > Search & summonses were enforced by the district court. The Seizure > Warrants Third Circuit upheld the order, but the Fifth Circuit Constitutional Law > ... > Fundamental Rights > Procedural reversed the order. The court stated that the Fifth Due Process > Self-Incrimination Privilege

Kyle Smith Page 3 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****1

Criminal Law & Procedure > Search & Evidence > Privileges > Attorney-Client Privilege > General Seizure > Warrantless Searches > General Overview Overview Criminal Law & Procedure > ... > Warrantless HN8 When the client himself would be privileged from Searches > Exigent Circumstances > Information From Others production of the document, either as a party at common law or as exempt from self-incrimination, the HN4 U.S. Const. amend. V protects against compelled attorney having possession of the document is not self-incrimination, not the disclosure of private bound to produce. information. Constitutional Law > ... > Fundamental Rights > Procedural Constitutional Law > ... > Fundamental Rights > Search & Due Process > Self-Incrimination Privilege Seizure > Scope of Protection HN9 U.S. Const. amend. V does not independently Constitutional Law > ... > Fundamental Rights > Procedural proscribe the compelled production of every sort of Due Process > Self-Incrimination Privilege incriminating evidence, but applies only when the Criminal Law & Procedure > Search & accused is compelled to make a testimonial Seizure > Expectation of Privacy communication that is incriminating.

HN5 No claim under U.S. Const. amends. IV or V can Constitutional Law > ... > Fundamental Rights > Procedural prevail where there exists no legitimate expectation of Due Process > Self-Incrimination Privilege privacy and no semblance of governmental compulsion Criminal Law & Procedure > ... > Defendant's Rights > Right against the person of the accused. to Remain Silent > Communicative & Testimonial Information Criminal Law & Procedure > Counsel > Right to Counsel > General Overview Evidence > Privileges > Self-Incrimination Privilege > General Overview Evidence > Privileges > Attorney-Client Privilege > General Overview HN10 The privilege against self-incrimination protects a Evidence > Privileges > Self-Incrimination person only against being incriminated by his own Privilege > General Overview compelled testimonial communications.

HN6 It is universally accepted that the attorney-client Lawyers' Edition Display privilege may be raised by the attorney.

Evidence > Privileges > General Overview Summary Evidence > Privileges > Attorney-Client Privilege > General Overview These cases presented the question whether enforcement of summonses served by the Internal Legal Ethics > Client Relations > Duties to Client > Duty of Revenue Service on taxpayers' attorneys in Confidentiality investigations of possible civil or criminal liability under the federal income tax laws--which summonses directed HN7 Confidential disclosures by a client to an attorney the attorneys to produce relevant documents of the made in order to obtain legal assistance are privileged. taxpayers' accountants that had been given to the The purpose of the privilege is to encourage clients to attorneys by the taxpayers for the purpose of obtaining make full disclosure to their attorneys. However, since legal advice in the tax investigations--violated the the privilege has the effect of withholding relevant taxpayers' Fifth Amendment privilege against self- information from the factfinder, it applies only where incrimination. In case No. 74-18, the United States necessary to achieve its purpose. Accordingly it protects District Court for the Eastern District of Pennsylvania only those disclosures, necessary to obtain informed granted enforcement of the summons (352 F Supp 731), legal advice, which might not have been made absent and the United States Court of Appeals for the Third the privilege. Pre-existing documents which can be Circuit affirmed, holding that the taxpayers there obtained by court process from the client when he is in involved had never acquired a possessory interest in the possession may also be obtained from the attorney by documents, and that the documents were not immune in similar process following transfer by client in order to the hands of their attorney (500 F2d 683). In case No. obtain more informed legal advice.

Kyle Smith Page 4 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****1

74-611, the United States District Court for the Northern either self-incriminating oral statements or the District of Texas granted enforcement of the summons production of self-incriminating evidence recorded in against the taxpayer's attorney (enforcement also being one's private books and papers. granted as to a summons that had been served on the taxpayer's accountant), but the United States Court of Marshall, J., concurring in the judgment, expressed the Appeals for the Fifth Circuit reversed in pertinent part, view that the court's new approach for deciding when holding that under the Fifth Amendment, the documents the Fifth Amendment privilege could be asserted to bar would have been privileged if production had been production of documentary evidence--resting on the tacit sought from the taxpayer while he retained possession verification inherent in the act of production that the of the documents, and that in light of the confidential document existed, was in the possession of the nature of the attorney-client relationship, the taxpayer producer, and was the one sought by the subpoena-- retained constructive possession of the evidence and should be applied to provide substantially the same thus retained Fifth Amendment protection (499 F2d protection as the court's prior focus on the contents and 444). private nature of the document subpoenaed.

On certiorari, the United States Supreme Court affirmed Stevens, J., did not participate. as to case No. 74-18, and reversed as to case No. 74- 611. In an opinion by White, J., expressing the view of Headnotes six members of the court, it was held that (1) enforcement of the summonses against the taxpayers' WITNESSES §76 > self-incrimination -- documents in attorneys did not violate the taxpayers' Fifth Amendment attorney's possession -- > Headnote: privilege against self-incrimination, since such LEdHN[1A] [1A]LEdHN[1B] [1B]LEdHN[1C] [1C] enforcement did not "compel" the taxpayers to be "witnesses" against themselves, and did not deprive Enforcement of a summons served by the Internal them of any privilege not to be compelled to testify and Revenue Service on a taxpayer's attorney in an not to be compelled to produce private papers in their investigation of possible civil or criminal liability under personal possession, and (2) although the attorney- the federal income tax laws--which summons directed client privilege applied to documents in an attorney's the attorney to produce relevant documents of the hands which would have been privileged in his client's taxpayer's accountant that had been given to the hands by reason of the Fifth Amendment privilege attorney by the taxpayer for the purpose of obtaining against self-incrimination, nevertheless the attorney- legal advice--does not violate the taxpayer's Fifth client privilege did not bar enforcement of the Amendment privilege against self-incrimination, since summonses in the instant cases, where the taxpayers, if enforcement against the attorney does not "compel" the production of the documents had been sought from taxpayer to be a "witness" against himself or to do them, could not have invoked the Fifth Amendment anything, it being immaterial whether the Fifth privilege against self-incrimination, since even though Amendment would have barred a subpoena directing by producing the documents the taxpayers would have the taxpayer to produce the documents while they were tacitly conceded their existence, their possession or in his hands, or that the attorney was the taxpayer's control by the taxpayer, and the taxpayer's belief that agent and the taxpayer might have had a reasonable the documents were those described in the subpoenas, expectation of privacy for the records in the attorney's nevertheless the taxpayers' acts of producing the hands; the situation is not one where constructive documents would not have involved testimonial self- possession is so clear or relinquishment of possession incrimination within the protection of the Fifth so temporary and insignificant as to leave the personal Amendment. compulsion upon the taxpayer substantially intact, since the documents sought were obtainable without personal Brennan, J., concurred in the judgment, expressing the compulsion on the taxpayer, who retained any privilege view that (1) given the prior access by the taxpayers' he had not to be compelled to testify against himself and accountants to the papers involved in the instant not to be compelled himself to produce private papers in proceedings, and given the wholly business nature of his possession. the papers, the privilege against self-incrimination did not protect the papers from production, but (2) the WITNESSES §72 > privilege against self-incrimination -- privilege should be construed to safeguard against > Headnote: governmental intrusions on personal privacy to compel

Kyle Smith Page 5 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****1

LEdHN[2] [2] such as (1) the Fourth Amendment's protection against seizures without warrant or probable cause and against Under the Fifth Amendment privilege against self- subpoenas which suffer from too much indefiniteness or incrimination, a party is privileged from producing breadth in the things required to be "particularly evidence but not from its production. described," (2) the First Amendment, or (3) evidentiary privileges such as the attorney-client privilege. WITNESSES §72 > privilege against self-incrimination -- protection of privacy -- > Headnote: SEIZURE §26 > validity of IRS summons -- > Headnote: LEdHN[3] [3] LEdHN[8A] [8A]LEdHN[8B] [8B]

Although one of the purposes served by the Fifth A summons served by the Internal Revenue Service on Amendment privilege against compelled testimonial self- a taxpayer's attorney in an investigation of possible civil incrimination is that of protecting personal privacy, or criminal liability, which summons directed the nevertheless not every invasion of privacy violates the attorney to produce relevant documents of the privilege, and the Fifth Amendment will not be applied to taxpayer's accountant that had been given to the prevent the otherwise proper acquisition or use of attorney by the taxpayer for the purpose of obtaining evidence which does not involve compelled testimonial legal advice, does not violate the Fourth Amendment, self-incrimination of some sort. where such summons is narrowly drawn and seeks only documents of unquestionable relevance to the tax SEIZURE §5 > WITNESSES §72 > privilege against self- investigation. incrimination -- reasonableness -- > Headnote: LEdHN[4] [4] EVIDENCE §699 > WITNESSES §76 > attorney-client privilege -- self-incrimination -- documents in attorney's hands The Fifth Amendment's strictures against self- -- > Headnote: incrimination, unlike the Fourth Amendment's strictures LEdHN[9A] [9A]LEdHN[9B] [9B]LEdHN[9C] [9C] against unreasonable searches and seizures, are not removed by showing reasonableness. Although the attorney-client privilege applies to documents in an attorney's hands which would have SEIZURE §3 > invasion of privacy -- warrant -- > Headnote: been privileged in his client's hands by reason of the LEdHN[5] [5] Fifth Amendment privilege against self-incrimination, nevertheless the attorney-client privilege does not bar When the government's reason to believe incriminating enforcement of a summons served by the Internal evidence will be found becomes sufficiently great, an Revenue Service on a taxpayer's attorney in an invasion of privacy becomes justified and a warrant to investigation of possible civil or criminal liability under search and seize will issue. the federal income tax laws--which summons directed the attorney to produce relevant documents of the WITNESSES §72 > privilege against self-incrimination -- taxpayer's accountant that had been given to the > Headnote: attorney by the taxpayer to obtain legal advice in the tax LEdHN[6] [6] investigation--since enforcement of a summons addressed to the taxpayer while the documents were in The Fifth Amendment privilege against self-incrimination his possession would have involved no incriminating protects against compelled testimony, not the disclosure testimony and thus would not have been barred by the of private information. Fifth Amendment privilege against self-incrimination.

LAW §925 > EVIDENCE §698 > SEIZURE §25 > EVIDENCE §699 > attorney-client privilege -- > Headnote: WITNESSES §72 > private information -- constitutional LEdHN[10A] [10A]LEdHN[10B] [10B] protection -- > Headnote: LEdHN[7] [7] The attorney-client privilege may be raised by the attorney. Insofar as private information not obtained through compelled self-incriminating testimony is legally EVIDENCE §699 > attorney-client privilege -- purpose -- protected, its protection stems from sources other than > Headnote: the Fifth Amendment privilege against self-incrimination, LEdHN[11] [11]

Kyle Smith Page 6 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****1

Confidential disclosures made by a client to his attorney the taxpayer to produce his accountant's workpapers in in order to obtain legal assistance are privileged; the the taxpayer's possession--involves substantial purpose of the privilege is to encourage clients to make compulsion, nevertheless it does not compel oral full disclosure to their attorneys, but since the privilege testimony, nor does it ordinarily compel the taxpayer to has the effect of withholding relevant information from restate or affirm the truth of the documents sought, and the fact-finder, it applies only where necessary to thus the Fifth Amendment privilege against self- achieve its purpose and protects only those disclosures incrimination is not violated by the fact alone that the which might not have been made absent the privilege. papers on their face might incriminate the taxpayer, the privilege protecting a person only against being EVIDENCE §699 > attorney-client privilege -- production of incriminated by his own compelled testimonial documents -- > Headnote: communications; the taxpayer cannot avoid compliance LEdHN[12] [12] with the subpoena merely by asserting that the documents contain incriminating writing, whether his Under the attorney-client privilege, when the client own or that of someone else, since even though by himself would be privileged from production of a producing the documents the taxpayer tacitly concedes document, either as a party at common law or as their existence, their possession or control by the exempt from self-incrimination, his attorney having taxpayer, and the taxpayer's belief that the documents possession of the document is not bound to produce it, are those described in the subpoena, nevertheless the where the transfer of the document to the attorney was act of producing the documents, which is the only thing for the purpose of obtaining legal advice. that the taxpayer is compelled to do, does not itself involve testimonial self-incrimination within the SEIZURE §8 > evidentiary matters -- > Headnote: protection of the Fifth Amendment. LEdHN[13] [13] WITNESSES §76 > privilege against self-incrimination -- Purely evidentiary materials, as well as contraband and production of documents -- > Headnote: fruits and instrumentalities of crime, may be searched LEdHN[17A] [17A]LEdHN[17B] [17B] for and seized under proper circumstances. The fact that subpoenaed documents may have been WITNESSES §88 > privilege against self-incrimination -- written by the person asserting the Fifth Amendment > Headnote: privilege against self-incrimination is insufficient to LEdHN[14] [14] trigger the privilege; unless the government has compelled the subpoenaed person to write the The Fifth Amendment privilege against self-incrimination document, the fact that it was written by him is not does not independently proscribe the compelled controlling with respect to the Fifth Amendment production of every sort of incriminating evidence, but privilege. applies only when the accused is compelled to make a testimonial communication that is incriminating. WITNESSES §93.5 > privilege against self-incrimination -- handwriting exemplar -- > Headnote: WITNESSES §81 > privilege against self-incrimination -- LEdHN[18] [18] partnership records -- > Headnote: LEdHN[15] [15] Although a handwriting exemplar, required to be furnished by the accused, may be incriminating to the Neither a partnership nor the individual partners are accused, and although he is compelled to furnish it, shielded from compelled production of partnership nevertheless his Fifth Amendment privilege against self- records on self-incrimination grounds. incrimination is not violated because nothing he has said or done is sufficiently testimonial for purposes of WITNESSES §76 > privilege against self-incrimination -- the privilege. production of taxpayer's records -- > Headnote: LEdHN[16] [16] EVIDENCE §532 > subpoenaed documents -- authentication -- > Headnote: Although a subpoena served on a taxpayer in an LEdHN[19A] [19A]LEdHN[19B] [19B] investigation of possible civil or criminal liability under the federal income tax laws--which subpoena requires In producing his accountant's work papers and letters

Kyle Smith Page 7 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****1 pursuant to a subpoena, a taxpayer merely indicates his States, 409 U.S. 322. Pp. 396-398. belief that the documents are those described in the subpoena, but does not "authenticate" the documents; (b) These cases do not present a situation where the taxpayer is not competent to authenticate the constructive possession of the documents in question is documents either by producing them or by testifying so clear or relinquishment of possession so [****3] orally, since he did not prepare the documents and temporary and insignificant as to leave the personal cannot vouch for their accuracy; the documents are not compulsion upon the taxpayer substantially intact, since admissible in evidence against the taxpayer without the documents sought were obtainable without personal authenticating testimony by the accountant. compulsion upon the taxpayers. Couch, supra. P. 398.

Syllabus (c) The taxpayers, by transferring the documents to their attorneys, did not lose any Fifth Amendment privilege they ever had not to be compelled to testify against In each of these cases taxpayers, who were under themselves and not to be compelled themselves to investigation for possible civil or criminal liability under produce private papers in their possession, and this the federal income tax laws after having obtained from personal privilege was in no way decreased by the their respective accountants certain documents relating transfer. Pp. 398-399. to the accountants' preparation of their tax returns, transferred the documents to their respective attorneys (d) Even though the taxpayers, after transferring the to assist the taxpayers in connection with the documents to their attorneys, may have had a investigations. Subsequently, the Internal Revenue reasonable expectation of privacy with respect to the Service served summonses on the attorneys directing documents, the Fifth Amendment does not protect them to produce the documents, but the attorneys private information obtained without compelling self- refused to comply. The Government then brought incriminating testimony. Pp. 399-401. enforcement actions, and in each case the District Court ordered the summons enforced. In No. 74-18 the Court 2. Although the attorney-client privilege applies to of Appeals affirmed, holding that the taxpayers had documents in the hands of an attorney which would never acquired a possessory interest in the documents have been privileged in the hands of the client by and that the documents were not immune from reason of the Fifth Amendment, the taxpayer-clients in production in the attorney's hands. But in No. 74-611 these cases would not be protected by that Amendment the Court of Appeals reversed, holding that by virtue of from producing the documents in question, because the Fifth Amendment the documents would have been production [****4] of such documents involves no privileged [****2] from production pursuant to a incriminating testimony and therefore the documents in summons directed to the taxpayer if he had retained the hands of the taxpayers' attorneys were not immune possession, and that, in light of the attorney-client from production. Pp. 402-414. relationship, the taxpayer retained such privilege after transferring the documents to his attorney. Held: (a) The Fifth Amendment does not independently proscribe the compelled production of every sort of 1. Compelled production of the documents in question incriminating evidence but applies only when the from the attorneys does not implicate whatever Fifth accused is compelled to make a testimonial Amendment privilege the taxpayer-clients might have communication that is incriminating. P. 408. enjoyed from being themselves compelled to produce the documents. Pp. 396-401. (b) Here, however incriminating the contents of the accountants' workpapers might be, the act of producing (a) Whether or not the Fifth Amendment would have them - the only thing that the taxpayers are compelled to barred a subpoena directing the taxpayers to produce do - would not itself involve testimonial self- the documents while they were in their hands, the incrimination, and implicitly admitting the existence and taxpayers' privilege under that Amendment is not possession of the papers does not rise to the level of violated by enforcing the summonses because testimony within the protection of the Fifth Amendment. enforcement against a taxpayer's lawyer would not Pp. 409-414.I "compel" the taxpayer to do anything, and certainly would not compel him to be a "witness" against himself, No. 74-18, 500 F. 2d 683, affirmed; No. 74-611, 499 F. and the fact that the attorneys are agents of the 2d 444, reversed. S taxpayers does not change this result. Couch v. United

Kyle Smith Page 8 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****4

WHITE, J., delivered the opinion of the Court, in which connection [*394] with an investigation of possible civil BURGER, C.J., and STEWART, BLACKMUN, or criminal liability under the federal income tax laws. POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., Shortly after the interviews - one day later in No. 74-611 post, p. 414, and MARSHALL, J., post, p. 430, filed and a week or two later in No. 74-18 - the taxpayers opinions concurring in the judgment. STEVENS, J., obtained from their respective accountants certain took no part in the consideration [****5] or decision of documents relating to the preparation by the the cases.I accountants of their tax returns. Shortly after obtaining the documents - later the same day in No. 74-611 and a Counsel: Richard L. Bazelon argued the cause for few weeks later in No. [****7] 74-18 - the taxpayers petitioners in No. 74-18. With him on the brief was transferred the documents to their lawyers - respondent Solomon Fisher. Deputy Solicitor General Wallace Kasmir and petitioner Fisher, respectively - each of argued the cause for petitioners in No. 74-611 and whom was retained to assist the taxpayer in connection respondents in No. 74-18. With him on the briefs were with the investigation. Upon learning of the Solicitor General Bork, Assistant Attorney General whereabouts of the documents, the Internal Revenue Crampton, Stuart A. Smith and Robert E. Lindsay. Service served summonses on the attorneys directing Robert E. Goodfriend argued the cause for respondents them to produce documents listed therein. In No. 74- in No. 74-611. With him on the brief were Edward A. 611, the documents were described as "the following Copley and Cyril D. Kasmir. + records of Tannebaum Bindler & Lewis [the accounting firm]. S [****6] " [**1573] 1. Accountant's work papers pertaining to Dr. Judges: BURGER, BRENNAN, STEWART, E. J. Mason's books and records of 1969, 1970 and MARSHALL, BLACKMUN, POWELL, REHNQUIST; 1971. [2] STEVENS took no part in the consideration or decision of the case. "2. Retained copies of E. J. Mason's income tax returns for 1969, 1970 and 1971. Opinion by: WHITE "3. Retained copies of reports and other Opinion correspondence between Tannebaum Bindler & Lewis and Dr. E. J. Mason during 1969, 1970 and 1971."I

[*393] [***45] [**1572] MR. JUSTICE WHITE delivered In No. 74-18, the documents demanded were analyses the opinion of the Court. by the accountant of the taxpayers' income and expenses which had been copied by the accountant In these two cases we are called upon to decide from the taxpayers' canceled checks and deposit whether a summons directing an attorney to produce receipts. 3 In No. [*395] 74-611, a summons was also documents delivered to him by his client in connection served on the accountant directing him to appear and with the attorney-client relationship is enforceable over testify concerning the documents [****8] to be produced claims that the documents were constitutionally immune by the lawyer. In each case, the lawyer declined to from summons in the hands of the client and retained comply with the summons directing production of the that immunity in the hands of the attorney. documents, and enforcement actions were commenced [***46] I by the Government under 26 U.S.C. §§ 7402 (b) and 7604 (a). In No. 74-611, the attorney raised in defense In each case, an Internal Revenue agent visited the of the enforcement action the taxpayer's accountant- taxpayer or taxpayers 1 and interviewed them in client privilege, his attorney-client privilege, and his Fourth and Fifth Amendment rights. In No. 74-18, the

+ Stanley H. Stearman filed a brief for the National Society o return. Public Accountants as amicus curiae urging affirmance in No. 74-611. Richard H. Appert, Louis Bender, Michael I. 2 The "books and records" concerned the taxpayer's large Saltzman, and James D. Fellers filed a brief for the American medical practice. Bar Association as amicus curiae in both cases. 3 The husband taxpayer's checks and deposit receipts related 1 In No. 74-18, the taxpayers are husband and wife who filed a to his textile waste business. The wife's related to her joint return. In No. 74-611, the taxpayer filed an individual women's wear shop.

Kyle Smith Page 9 of 24 425 U.S. 391, *395; 96 S. Ct. 1569, **1573; 48 L. Ed. 2d 39, ***46; 1976 U.S. LEXIS 98, ****8 attorney claimed that enforcement would involve proposition that if the Fifth Amendment would have compulsory self-incrimination of the taxpayers in excused a taxpayer from turning over the accountant's violation of their Fifth Amendment privilege, would papers had he possessed them, [**1574] the attorney to involve a seizure of the papers without necessary whom they are delivered for the purpose of obtaining compliance with the Fourth Amendment, and would legal advice should also be immune from subpoena. violate the taxpayers' right to communicate in Although we agree with this proposition for the reasons confidence with their attorney. In No. 74-18 the set forth in Part III, infra, we are convinced that, under taxpayers intervened and made similar claims. our decision in Couch v. United States, 409 U.S. 322 (1973), it is not the taxpayer's Fifth Amendment privilege [****9] that would excuse the attorney from production.

In each case the summons was ordered enforced by the LEdHN The relevant part of that Amendment provides: District Court and its order was stayed pending appeal. S In No. 74-18, 500 F. 2d 683 (CA3 1974), petitioners' appeal raised, in [***47] terms, only their Fifth HN1 "No person… shall be compelled in any criminal Amendment claim, but they argued in connection with case to be a witness against himself." (Emphasis that claim that enforcement of the summons would added.)I involve a violation of the taxpayers' reasonable expectation of privacy and particularly so in light of the [*397] The taxpayer's privilege under this Amendment is confidential relationship of attorney to client. The Court not violated by enforcement of the summonses involved of Appeals for the Third Circuit after reargument en in these cases because enforcement against a banc affirmed the enforcement order, holding that the taxpayer's lawyer would not "compel" the [****12] taxpayers had never acquired a possessory interest in taxpayer to do anything - and certainly would not the documents and that the papers were not immune in compel him to be a "witness" against himself. The Court the hands of the attorney. In No. 74-611, a divided has held repeatedly that HN2 the Fifth Amendment is panel of the Court of Appeals for the Fifth Circuit limited to prohibiting the use of "physical or moral reversed the enforcement order, 499 F. 2d 444 compulsion" exerted on the person asserting the (1974). [****10] The court reasoned that by virtue of the privilege, Perlman v. United States, 247 U.S. 7, 15 Fifth Amendment the documents would have been (1918); Johnson v. United States, 228 U.S. 457, 458 privileged [*396] from production pursuant to summons (1913); Couch v. [***48] United States, supra, at 328, directed to the taxpayer had he retained possession 336. See also Holt v. United States, 218 U.S. 245, 252- and, in light of the confidential nature of the attorney- 253 (1910); United States v. Dionisio, 410 U.S. 1 client relationship, the taxpayer retained, after the (1973); Schmerber v. California, 384 U.S. 757, 765 transfer to his attorney, "a legitimate expectation of (1966); Burdeau v. McDowell, 256 U.S. 465, 476 (1921); privacy with regard to the materials he placed in his California Bankers Assn. v. Shultz, 416 U.S. 21, 55 attorney's custody, that he retained constructive (1974). In Couch v. United States, supra, we recently possession of the evidence, and thus… retained Fifth ruled that the Fifth Amendment rights of a taxpayer were Amendment protection." 4 Id., at 453. We granted not violated by the enforcement of a documentary certiorari to resolve the conflict created. 420 U.S. 906 summons directed to her accountant and requiring (1975). Because in our view the documents were not production of the taxpayer's own records in the privileged either in the hands of the lawyers or of their possession of the accountant. We did so on [****13] the clients, we affirm the judgment of the Third Circuit in No. ground that in such a case "the ingredient of personal 74-18 and reverse the judgment of the Fifth Circuit in compulsion against an accused is lacking." 409 U.S., at No. 74-611. 329.

[****11] II Here, the taxpayers are compelled to do no more than was the taxpayer in Couch. The taxpayers' Fifth All of the parties in these cases and the Court of Amendment privilege is therefore not violated by Appeals for the Fifth Circuit have concurred in the enforcement of the summonses directed toward their attorneys. This is true whether or not the Amendment would have barred a subpoena directing the taxpayer to 4 The respondents in No. 74-611 did not, in terms, rely on the produce the documents while they were in his hands. attorney-client privilege or the Fourth Amendment before the Court of Appeals.

Kyle Smith Page 10 of 24 425 U.S. 391, *397; 96 S. Ct. 1569, **1574; 48 L. Ed. 2d 39, ***48; 1976 U.S. LEXIS 98, ****13

The fact that the attorneys are agents of the taxpayers ethically the attorney was required to respect the does not change this result. Couch held as much, since confidences of his client, the latter had a reasonable the accountant there was also the taxpayer's agent, and expectation of privacy for the records in the hands of the in this respect reflected a long standing view. In [*398] attorney and therefore did not forfeit his Fifth Hale v. Henkel, 201 U.S. 43, 69-70 (1906), the Court Amendment privilege with respect to the records by said that HN3 the privilege "was never intended to transferring them in order to obtain legal advice. It is permit [a person] to plead the fact that some third true that the Court has often stated that one of the person might be incriminated by his testimony, even several purposes served by the constitutional privilege though he were the agent of such person…. [T]he against compelled testimonial self-incrimination is that of Amendment is limited to a person who shall be protecting personal privacy. See, e.g., Murphy v. compelled in any criminal case to be a witness Waterfront Comm'n, 378 U.S. 52, 55 (1964); Couch v. against [****14] himself." (Emphasis in original.) 0">"It is United States, supra, at 332, 335-336; Tehan v. United extortion of information from the accused himself that States ex rel. Shott, 382 U.S. 406, 416 (1966); Davis v. offends our sense of justice." Couch v. United States, United States, 328 U.S. 582, 587 (1946). But the Court supra, at 328. Agent or no, the lawyer is not the has never suggested that every invasion of privacy taxpayer. The taxpayer is the "accused," and nothing is violates the privilege. Within the limits imposed by the being extorted from him. language of the Fifth Amendment, which we necessarily observe, the privilege truly serves privacy interests; but LEdHN Nor is this one of those situations, which Couch the Court has never on any ground, personal privacy suggested might exist, where constructive possession is included, applied the Fifth Amendment to prevent the so clear or relinquishment of possession so temporary otherwise proper [****17] acquisition or use of evidence and insignificant as to leave the personal compulsion which, in the Court's view, did not involve compelled upon the taxpayer substantially intact. 409 U.S., at testimonial self-incrimination of some sort. 5 333.In this respect we see no difference between the delivery to the attorneys in these cases and delivery to [****18] [*400] LEdHN[4] [4]LEdHN[5] [5]The the accountant in the Couch case. As was true in proposition that the Fifth Amendment protects private Couch, the documents sought were obtainable without information obtained without compelling self- personal compulsion on the accused. incriminating testimony is contrary to the clear statements of this Court that under appropriate [**1575] LEdHN[2] [2]Respondents in No. 74-611 and safeguards private incriminating statements of an petitioners in No. 74-18 argue, and the Court of Appeals accused may be overheard and used in evidence, if for the Fifth Circuit apparently agreed, that if the they are not compelled at the time they were uttered, summons was enforced, the taxpayers' Fifth Katz v. United States, 389 U.S. 347, 354 (1967);OsBorn Amendment [****15] privilege would be, but should not v. United States, 385 U.S. 323, 329-330 (1966); and be, lost solely because they gave their documents to Berger v. New York, 388 U.S. 41, 57 [***50] (1967); cf. their lawyers in order to obtain legal advice. But this Hoffa v. United States, 385 U.S. 293, 304 [**1576] misconceives the nature of the constitutional privilege. (1966); and that disclosure of private information may The Amendment protects a person from being compelled to be a witness against himself. Here, the taxpayers retained any privilege they ever had not to be 5 There is a line of cases in which the Court stated that the compelled to [***49] testify against themselves and not Fifth Amendment was offended by the use in evidence of to be compelled themselves to produce private papers documents or property seized in violation of the Fourth in their possession. This personal privilege was in no Amendment. Gouled v. United States, 255 U.S. 298, 306 way decreased by the transfer. It is simply that by (1921); Agnello v. United States, 269 U.S. 20, 33-34 (1925); [*399] reason of the transfer of the documents to the United States v. Lefkowitz, 285 U.S. 452, 466-467 (1932); attorneys, those papers may be subpoenaed without Mapp v. Ohio, 367 U.S. 643, 661 (1961) (Black, J., compulsion on the taxpayer. The protection of the Fifth concurring). But the Court purported to find elements of Amendment is therefore not available. "A party is compulsion in such situations. "In either case he is the privileged from producing evidence but not from its unwilling source of the evidence, and the Fifth Amendment forbids that he shall be compelled to be a witness against production." Johnson v. United States, supra, at 458. himself in a criminal case." Gouled v. United States, supra, at 306. In any event the predicate for those cases, lacking here, LEdHN LEdHN[3] [3]The Court of Appeals for the was a violation of the Fourth Amendment. Cf. Burdeau v. Fifth [****16] Circuit suggested that because legally and McDowell, 256 U.S., 465, 475-476 (1921).

Kyle Smith Page 11 of 24 425 U.S. 391, *400; 96 S. Ct. 1569, **1576; 48 L. Ed. 2d 39, ***50; 1976 U.S. LEXIS 98, ****18 be compelled if immunity removes the risk of privilege. 7 incrimination. Kastigar v. United States, 406 U.S. 441 (1972). If the Fifth Amendment protected generally [****21] LEdHN against the obtaining of private information from a man's mouth or pen or house, its protections would [*402] III presumably not be lifted by probable cause and a warrant or by immunity. [****19] The privacy invasion is LEdHN LEdHN Our above holding is that compelled not mitigated by immunity; and the Fifth Amendment's production of documents [***51] from an attorney does strictures, unlike the Fourth's, are not removed by not implicate whatever Fifth Amendment privilege the showing reasonableness. The Framers addressed the taxpayer might have enjoyed from being compelled to subject of personal privacy directly in the Fourth produce them himself. The [****22] taxpayers in these Amendment. They struck a balance so that when the cases, however, have from the outset consistently urged State's reason to believe incriminating evidence will be that they should not be forced to expose otherwise found becomes sufficiently great, the invasion of privacy protected documents to summons simply because they becomes justified and a warrant to search and seize will have sought legal advice and turned the papers over to issue. They did not seek in still another Amendment - their attorneys. The Government appears to agree the Fifth - to achieve a general protection of privacy but unqualifiedly. The difficulty is that the taxpayers have to deal with the more specific issue of compelled self- erroneously relied on the Fifth Amendment without incrimination. urging the attorney-client privilege in so many words. They have nevertheless invoked the relevant body of [*401] LEdHN[6] [6]We cannot cut the Fifth law and policies that govern the attorney-client privilege. Amendment completely loose from the moorings of its [**1577] In this posture of the case, we feel obliged to language, and make it serve as a general protector of inquire whether the attorney-client privilege applies to privacy - a word not mentioned in its text and a concept documents in the hands of an attorney which would directly addressed in the Fourth Amendment. We have been privileged in the hands of the client by 8 adhere to the view that HN4 the Fifth Amendment reason of the Fifth Amendment. protects against "compelled self-incrimination, not [the disclosure of] private information." [****20] United States v. Nobles, 422 U.S. 225, 233 n. 7 (1975). 7 The taxpayers and their attorneys have not raised arguments LEdHN[7] [7]LEdHN Insofar as private information not of a Fourth Amendment nature before this Court and could not be successful if they had. The summonses are narrowly obtained through compelled self-incriminating testimony drawn and seek only documents of unquestionable relevance is legally protected, its protection stems from other to the tax investigation. Special problems of privacy which 6 sources - the Fourth Amendment's protection against might be presented by subpoena of a personal diary, United seizures without warrant or probable cause and against States v. Bennett, 409 F. 2d 888, 897 (CA2 1969) (Friendly, subpoenas which suffer from "too much indefiniteness J.), are not involved here. or breadth in the things required to be 'particularly First Amendment values are also plainly not implicated in described,'" Oklahoma Press Pub. Co. v. Walling, 327 these cases. U.S. 186, 208 (1946);d">In re Horowitz, 482 F.2d 72, 75-80 (CA2 1973) (Friendly, J.); the First Amendment, 8 Federal Rule Evid. 501, effective January 2, 1975, provides see NAACP v. Alabama, 357 U.S. 449, 462 (1958); or that with respect to privileges the United States district courts evidentiary privileges such as the attorney-client "shall be governed by the principles of the common law… interpreted… in the light of reason and experience." Thus, whether or not Rule 501 applies to this case, the attorney- client privilege issue is governed by the principles and 6 In Couch v. United States, 409 U.S. 322 (1973), on which authorities discussed and cited infra. Fed. Rule Crim. Proc. taxpayers rely for their claim that the Fifth Amendment 26. protects their "legitimate expectation of privacy," the Court differentiated between the things protected by the Fourth and LEdHN In No. 74-611, the taxpayer did not intervene, and his Fifth Amendments. "We hold today that HN5 no Fourth or rights have been asserted only through his lawyer. The Fifth Amendment claim can prevail where, as in this case, parties disagree on the question whether an attorney may there exists no legitimate expectation of privacy and no claim the Fifth Amendment privilege of his client. We need semblance of governmental compulsion against the person of not resolve this question. The only privilege of the taxpayer the accused." Id., at 336. involved here is the attorney-client privilege, and HN6 it is

Kyle Smith Page 12 of 24 425 U.S. 391, *402; 96 S. Ct. 1569, **1577; 48 L. Ed. 2d 39, ***51; 1976 U.S. LEXIS 98, ****22

[****23] Palatini v. Sarian, 15 N.J. Super. 34, 83 A. 2d 24 (1951); Pearson v. Yoder, 39 Okla. 105, 134 P. 421 (1913); [*403] LEdHN[11] [11]LEdHN[12] [12]HN7 State ex rel Sowers v. Olwell, 64 Wash. 2d 828, 394 P. Confidential disclosures by a client to an attorney made 2d 681 (1964). The purpose of the privilege requires no in order to obtain legal assistance are privileged. 8 J. broader rule. Pre-existing documents obtainable from Wigmore, Evidence § 2292 (McNaughton rev. 1961) the client are not appreciably easier to obtain from the (hereinafter Wigmore); McCormick, § 87, p. 175, attorney after transfer to him. Thus, even absent the (hereinafter McCormick). The purpose of the privilege is attorney-client privilege, clients will not be discouraged to encourage clients to make full disclosure to their from disclosing the documents to the attorney, and their attorneys. 8 Wigmore § 2291, and § 2306, p. 590; ability to obtain informed legal advice will remain McCormick § 87, p. 175, § 92, p. 192; Baird v. Koerner, unfettered. It is otherwise if the documents are not 279 F. 2d 623 (CA9 1960);d">Modern Woodmen of obtainable by subpoena duces tecum or summons while America v. Watkins, 132 F. 2d 352 (CA5 in the exclusive possession of the client, for the client 1942);d">Prichard v. United States, 181 F. 2d 326 will then be reluctant to transfer possession to the (CA6), aff'd per curiam, 339 U.S. 974 lawyer unless the documents are also privileged (1950);Schwimmer v. United States, 232 F. 2d 855 [**1578] in the latter's hands. Where the transfer is (CA8 1956);United States v. Goldfarb, 328 F. 2d 280 made for the purpose of obtaining legal advice, the (CA6 1964). As a practical matter, if the client knows purposes of the attorney-client privilege would be that damaging information could more readily be defeated unless the privilege is applicable. "It follows, obtained from the attorney following [****24] disclosure then, that [****26] HN8 when the client himself would be than from himself in the absence of disclosure, the client privileged from production of the document, either as a would be reluctant to confide in his lawyer and it would party at common law… or as exempt from self- be difficult to obtain fully informed legal advice. incrimination, the attorney having possession of the However, since the privilege has the effect of document is not bound to produce." 8 Wigmore § 2307, withholding relevant information from the factfinder, it p. 592. Lower courts have so held. Id., § 2307, p. 592 applies only where necessary to achieve its purpose. n. 1, and cases there cited; United States v. Judson, Accordingly it protects only those disclosures - 322 F. 2d 460, 466 (CA9 1963); Colton v. United States, necessary to obtain informed legal advice - which might 306 F. 2d 633, 639 (CA2 1962). This proposition was not have been made absent the privilege. In re accepted by the Court of Appeals for the Fifth Circuit Horowitz, supra, at 81 (Friendly, J.); United States v. below, is asserted by petitioners [*405] in No. 74-18 Goldfarb, supra; 8 Wigmore § 2291, p. 554; McCormick and respondents in No. 74-611, and was conceded by § 89, p. 185. This Court and the lower courts have the Government in its brief and at oral argument. [***52] thus uniformly held that pre-existing documents Where the transfer to the attorney is for the purpose of which could have been obtained by court process from obtaining legal advice, we agree with it. the client when he was in possession may also be obtained from the attorney by similar process following LEdHN Since each taxpayer transferred possession of transfer by client in order [*404] to obtain more informed the documents in question from himself to his attorney, legal advice. Grant v. United States, 227 U.S. 74, 79-80 in order to obtain legal assistance in the tax (1913); 8 Wigmore § 2307, and cases there cited; investigations in question, the papers, if unobtainable by McCormick § 90, p. 185; Falsone v. United States, 205 summons from the client, are unobtainable by F. 2d 734 (CA5 1953); Sovereign Camp, W. O. W. v. summons [****27] directed to the attorney by reason of Reed, 208 Ala. 457, 94 So. 910 (1922); [****25] Andrews the attorney-client privilege. We accordingly proceed to v. Mississippi R. Co., 14 Ind. 169, 98 N.E. 49 (1860); the question whether the documents could have been obtained by summons addressed to the taxpayer while the documents were in his possession. The only bar to universally accepted that the attorney-client privilege may be enforcement of such summons asserted by the parties raised by the attorney, C. McCormick, Evidence § 92, p. 193, or the courts below is the Fifth Amendment's privilege § 94, p. 197 (2d ed. 1972) (hereinafter McCormick); Republic against self-incrimination. On this question the Court of Gear Co. v. Borg-Warner Corp., 381 F. 2d 551 (CA2 1967); Appeals for the Fifth Circuit in No. 74-611 is at odds with Bouschor v. United States, 316 F. 2d 451 (CA8 1963); Colton the Court of Appeals for the Second Circuit in United v. United States, 306 F. 2d 633 (CA2 1962); Schwimmer v. United States, 232 F. 2d 855 (CA8), cert. denied, 352 U.S. States v. Beattie, 522 F. 2d 267 (1975), cert. pending, 833 (1956); Baldwin v. Commissioner, 125 F. 2d 812 (CA9 Nos. 75-407, 75-700. 1942).

Kyle Smith Page 13 of 24 425 U.S. 391, *405; 96 S. Ct. 1569, **1578; 48 L. Ed. 2d 39, ***52; 1976 U.S. LEXIS 98, ****27

IV 635. Admitting the partnership invoice into evidence had violated both the Fifth and Fourth Amendments. The proposition that the Fifth Amendment prevents compelled production [***53] of documents over Among its several pronouncements, Boyd was objection that such production might incriminate stems understood to declare [****30] that the seizure, under from Boyd v. United States, 116 U.S. 616 (1886). Boyd warrant or otherwise, of any purely evidentiary materials involved a civil forfeiture proceeding brought by the violated the Fourth Amendment and that the Fifth Government against two partners for fraudulently Amendment rendered these seized materials attempting to import 35 cases of glass without paying inadmissible. Gouled v. United States, 255 U.S. 298 the prescribed duty. The partnership had contracted (1921); Agnello v. United States, 269 U.S. 20 (1925); with the Government to furnish the glass needed in the United States v. Lefkowitz, 285 U.S. 452 (1932). That construction of a Government building. The glass rule applied to documents as well as to other evidentiary specified was foreign glass, it [****28] being understood items - "[t]here is [***54] no special sanctity in papers, that if part or all of the glass was furnished from the as distinguished from other forms of property, to render partnership's existing duty-paid inventory, [*406] it could them immune from search and seizure, if only they fall be replaced by duty-free imports. Pursuant to this within the scope of the principles of the cases in which arrangement, 29 cases of glass were imported by the other property may be seized…." Gouled v. United partnership duty free. The partners then represented States, supra, at 309. Private papers taken from the that they were entitled to duty-free entry of an additional taxpayer, like other "mere evidence," could not be used 35 cases which were soon to arrive. The forfeiture against the accused over his Fourth and Fifth action concerned these 35 cases. The Government's Amendment objections. position was that the partnership had replaced all of the glass used in construction of the Government building LEdHN[13] [13]Several of Boyd's express or implicit when it imported the 29 cases. At trial, the Government declarations have not stood the test of time. The obtained a court order directing the partners to produce application of the Fourth Amendment to subpoenas was an invoice the partnership had received from the shipper limited by Hale v. Henkel, 201 U.S. 43 (1906), covering the previous 29-case shipment. The invoice and [****31] more recent cases. See, e.g., Oklahoma was disclosed, offered in evidence, and used, over the Press Pub. Co. v. Walling, 327 U.S. 186 (1946). Purely Fifth Amendment objection of the partners, to establish evidentiary (but "nontestimonial") materials, as well as that the partners were fraudulently claiming a greater contraband and fruits and instrumentalities of crime, exemption from duty than they were entitled to under may now be searched for and seized under proper the contract. This Court held that the invoice was circumstances, Warden v. Hayden, 387 U.S. 294 inadmissible and reversed the judgment in favor of the (1967). 9 Also, any notion that "testimonial" evidence Government. The Court ruled that the Fourth may never be seized and used in evidence is [*408] Amendment applied to court orders [****29] in the nature inconsistent with Katz v. United States, 389 U.S. 347 of subpoenas duces tecum in the same manner in which (1967); Osborn v. United States, 385 U.S. 323 (1966); it applies to search warrants, id., at 622; and that the and Berger v. New York, 388 U.S. 41 (1967),"/>"/> Government may not, consistent with the Fourth approving the seizure under appropriate circumstances Amendment, seize a person's documents or other of conversations of a person suspected of crime. See property as evidence unless it can claim a proprietary also Marron v. United States, 275 U.S. 192 (1927). interest in the property superior to that of the person from whom the property is obtained. Id., at 623-624. [****32] LEdHN[14] [14]LEdHN[15] [15]It is also clear The invoice in question was thus held to [**1579] have that HN9 the Fifth Amendment does not independently been obtained in violation of the Fourth Amendment. proscribe the compelled production of every sort of The Court went on to hold that the accused in a criminal incriminating evidence but applies only when the case or the defendant in a forfeiture action could not be accused is compelled to make a testimonial forced to produce evidentiary items without violating the Fifth Amendment as well as the Fourth. More specifically, the Court declared, "a compulsory 9 Citing to Schmerber v. California, 384 U.S. 757 (1966), production of the private books and papers of the owner Warden v. Hayden, 387 U.S., at 302-303, reserved the of goods sought to be forfeited… is compelling him to be question "whether there are items of evidential value whose a witness against himself, [*407] within the meaning of very nature precludes them from being the object of a the Fifth Amendment to the Constitution." Id., at 634- reasonable search and seizure."

Kyle Smith Page 14 of 24 425 U.S. 391, *408; 96 S. Ct. 1569, **1579; 48 L. Ed. 2d 39, ***54; 1976 U.S. LEXIS 98, ****32 communication that is incriminating. We have, testimony; nor would it ordinarily compel the taxpayer to accordingly, declined to extend the protection of the restate, repeat, or affirm the [****35] truth of the contents privilege to the giving of blood samples, Schmerber v. of the documents sought. Therefore, the Fifth California, 384 U.S. 757, 763-764 (1966); 10 to the Amendment would not be violated by the fact alone that giving of handwriting exemplars, Gilbert v. California, the papers on their face might incriminate the taxpayer, 388 U.S. 263, 265-267 (1967); voice exemplars, United for HN10 the privilege protects a person only against States v. Wade, 388 U.S. 218, 222-223, [**1580] being incriminated by his own compelled testimonial (1967); or the donning of a blouse worn by the communications. Schmerber v. California, supra; perpetrator, Holt v. United States, 218 U.S. 245 (1910). d">United States v. Wade, supra; and Gilbert v. Furthermore, despite Boyd, neither a partnership nor the California, supra. The accountant's workpapers are not individual partners are shielded from compelled the taxpayer's. They were not prepared by the production of partnership records on self-incrimination taxpayer, and they contain no testimonial declarations grounds. Bellis v. United States, 417 U.S. 85 by him. Furthermore, as far as this record (1974). [****33] It would appear that under that case the demonstrates, the preparation of all of the papers precise claim sustained in Boyd would now be rejected sought in these cases was wholly voluntary, and they for reasons not there considered. cannot be said to contain compelled [*410] testimonial evidence, either of the taxpayers or of anyone else. 11 The pronouncement in Boyd that a person may not be The taxpayer cannot avoid compliance with the forced to produce his private papers has nonetheless subpoena merely by asserting [**1581] that the item of often appeared as dictum in later opinions of this Court. evidence which he is required to produce contains See, e.g., Wilson v. United States, 221 U.S. 361, 377 incriminating writing, whether his own or that of (1911); [***55] d">Wheeler v. United States, 226 U.S. someone else. 478, 489 (1913); United States v. White, 322 U.S. 694, 698-699 (1944); [*409] Davis v. United States, 328 LEdHN U.S., at 587-588; Schmerber, supra, at 763-764; Couch v. United States, 409 U.S., at 330; Bellis v. United [****36] The [***56] act of producing evidence in States, supra, at 87. [****34] To the extent, however, response to a subpoena nevertheless has that the rule against compelling production of private communicative aspects of its own, wholly aside from the papers rested on the proposition that seizures of or contents of the papers produced. Compliance with the subpoenas for "mere evidence," including documents, subpoena tacitly concedes the existence of the papers violated the Fourth Amendment and therefore also demanded and their possession or control by the transgressed the Fifth, Gouled v. United States, supra, taxpayer. It also would indicate the taxpayer's belief the foundations for the rule have been washed away. In that the papers are those described in the subpoena. consequence, the prohibition against forcing the Curcio v. United States, 354 U.S. 118, 125 (1957). The production of private papers has long been a rule elements of compulsion are clearly present, but the searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give "testimony" that incriminates him. 11 The fact that the documents may have been written by the Accordingly, we turn to the question of what, if any, person asserting the privilege is insufficient to trigger the incriminating testimony within the Fifth Amendment's privilege, Wilson v. United States, 221 U.S. 361, 378 (1911). protection, is compelled by a documentary summons. And, unless the Government has compelled the subpoenaed person to write the document, cf. Marchetti v. United States, LEdHN[16] [16]LEdHN A subpoena served on a 390 U.S. 39 (1968); Grosso v. United States, 390 U.S. 62 taxpayer requiring him to produce an accountant's (1968), the fact that it was written by him is not controlling with workpapers in his possession without doubt involves respect to the Fifth Amendment issue. Conversations may substantial compulsion. But it does not compel oral be seized and introduced in evidence under proper safeguards, Katz v. United States, 389 U.S. 347 (1967); Osborn v. United States, 385 U.S. 323 (1966); Berger v. New York, 388 U.S. 41 (1967); United States v. Bennett, 409 F. 2d, 10 The Court's holding was: "Since the blood test evidence, at 897 n. 9, if not compelled. In the case of a documentary although an incriminating product of compulsion, was neither subpoena the only thing compelled is the act of producing the petitioner's testimony nor evidence relating to some document and the compelled act is the same as the one communicative act or writing by petitioner, it was not performed when a chattel or document not authored by the inadmissible on privilege grounds." 384 U.S., at 765. producer is demanded. McCormick § 128, p. 269.

Kyle Smith Page 15 of 24 425 U.S. 391, *410; 96 S. Ct. 1569, **1581; 48 L. Ed. 2d 39, ***56; 1976 U.S. LEXIS 98, ****36 more difficult issues are whether the tacit averments of subpoenaed documents being no more in issue here the taxpayer are both "testimonial" and "incriminating" than in the above cases, the summons is equally for purposes of applying the Fifth Amendment. These enforceable. questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the Moreover, assuming that these aspects of producing the facts and circumstances of particular cases or classes accountant's papers have some minimal thereof. In light of the records now before us, we are testimonial [****39] significance, surely it is not illegal to confident that however incriminating the [*411] contents seek accounting help in connection with one's tax of the accountant's workpapers might be, the act of returns or for the accountant to prepare workpapers and producing them - the only thing which the taxpayer is deliver them to the taxpayer. At this juncture, we are compelled to do - would not itself involve testimonial quite unprepared to hold that either the fact of existence self-incrimination. of the papers or of their possession by the taxpayer poses any realistic threat of incrimination to the It is doubtful that implicitly admitting the [****37] taxpayer. existence and possession of the papers rises to the level of testimony within the protection of the Fifth [**1582] LEdHN As for the possibility that responding 12 Amendment. The papers belong to the accountant, were to the subpoena would authenticate the workpapers, prepared by him, and are the kind usually prepared by production would [*413] express nothing more than the an accountant working on the tax returns of his client. taxpayer's belief that the papers are those described in Surely the Government is in no way relying on the the subpoena. The taxpayer would be no more "truthtelling" of the taxpayer to prove the existence of or competent to authenticate the accountant's workpapers his access to the documents. 8 Wigmore § 2264, p. or reports 13 by producing them than he would be to 380. The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information 12 The "implicit authentication" rationale appears to be the by conceding that he in fact has the papers. Under prevailing justification for the Fifth Amendment's application these circumstances by enforcement of the summons to documentary subpoenas. d">Schmerber v. California, 384 "no constitutional rights are touched. The question is U.S., at 763-764 ("the privilege reaches… the compulsion of not of testimony but of surrender." In re Harris, 221 U.S. responses which are also communications, for example, 274, 279 (1911). compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616"); Couch v. United States, 409 U.S., at 344, 346 (MARSHALL, J., dissenting) (the person LEdHN[18] [18]When an accused is required to submit complying with the subpoena "implicitly testifies that the a handwriting exemplar he admits his ability to write and evidence he brings forth is in fact the evidence demanded."); impliedly asserts that the exemplar is his writing. But in United States v. Beattie, 522 F. 2d 267, 270 (CA2 1975) common experience, the first would be a near truism (Friendly, J.) ("[a] subpoena demanding that an accused and the latter self-evident. In any event, although the produce his own records is… the equivalent of requiring him to exemplar [****38] may be incriminating to the accused take the stand and admit their genuineness"), cert. pending, and although he is compelled to furnish it, his Fifth Nos. 75-407, 75-700; 8 Wigmore § 2264, p. 380 (the Amendment privilege is not violated because nothing he testimonial component involved in compliance with an order has said or done is deemed to be sufficiently testimonial for production of documents or chattels "is the witness' for purposes of the privilege. This Court has also time assurance, compelled as an incident of the process, that the and again allowed subpoenas against the custodian of articles produced are the ones demanded"); McCormick § 126, corporate documents or those belonging to other p. 268 ("[t]his rule [applying the Fifth Amendment privilege to documentary subpoenas] is defended on the theory that one collective entities such as unions and partnerships and who produces documents (or other matter) described in the those of bankrupt businesses over claims that the subpoena duces tecum represents, by his production, that the documents will incriminate the custodian despite the fact documents produced are in fact the documents described in that producing the documents tacitly admits their the subpoena"); People v. Defore, 242 N.Y. 13, 27, 150 N.E. existence and their location in the [*412] hands of their 585, 590 (1926) (Cardozo, J.) ("A defendant is 'protected from possessor. E.g., Wilson v. United States, 221 U.S. 361 producing his documents in response to a subpoena duces (1911); Dreier v. United States, 221 U.S. 394 (1911); tecum, for his production of them in court would be his United States v. White, 322 U.S. 694 (1944); Bellis v. voucher of their genuineness.' There would then be United States, 417 U.S. 85 (1974); In re Harris, supra. 'testimonial compulsion'"). [***57] The existence and possession or control of the 13 In seeking the accountant's "retained copies" of

Kyle Smith Page 16 of 24 425 U.S. 391, *413; 96 S. Ct. 1569, **1582; 48 L. Ed. 2d 39, ***57; 1976 U.S. LEXIS 98, ****39 authenticate them if testifying orally. The taxpayer did Concur not prepare the papers and could not vouch for their accuracy. The documents would not be admissible in [**1583] MR. JUSTICE BRENNAN, concurring in the evidence against the taxpayer without authenticating judgment. testimony. Without more, responding to the subpoena in the circumstances before us would not appear to I concur in the judgment. Given the prior access by represent a substantial threat of self- accountants retained by the taxpayers to the papers incrimination. [****40] Moreover, in Wilson v. United involved in these cases and the wholly business rather States, supra; Dreier v. United States, supra; United than personal nature of the papers, I agree that the States v. White, supra; Bellis v. United States, supra; privilege against compelled self-incrimination did not in and In re Harris, supra, the custodian of corporate, either of these cases protect the papers from production union or partnership books or those of a bankrupt in response to the summonses. See Couch v. United business was ordered to respond to a subpoena for the States, 409 U.S. 322, 335-336 (1973); id., at 337 business' books even though doing so involved a (BRENNAN, J., concurring). I do not [****43] join the "representation that the documents produced are those Court's opinion, however, because of the portent of demanded by the subpoena," Curcio v. United States, much of what is said of a serious crippling of the 14 [***58] 354 U.S., at 125. protection secured by the privilege against compelled production of one's private books and papers. Like [****41] LEdHN today's decision in United States v. Miller, post, p. 435, it is but another step in the denigration of privacy

principles settled nearly 100 years ago in Boyd v. United States, 116 U.S. 616 [*415] (1886). According to the [*414] LEdHN Whether the Fifth Amendment would Court, "[w]hether the Fifth Amendment would shield the shield the taxpayer from producing his own tax records taxpayer from producing his own tax records in his in his possession is a question not involved here; possession is a question not involved here; for the for [****42] the papers demanded here are not his papers demanded here are not his 'private papers.'" "private papers," see Boyd v. United States, 116 U.S., at Ante, at 414. This implication that the privilege might 634-635. We do hold that compliance with a summons not protect against compelled production of tax records directing the taxpayer to produce the accountant's that are his "private papers" is so contrary to settled documents involved in these cases would involve no constitutional jurisprudence that this and other like incriminating testimony within the protection of the Fifth implications throughout the opinion 1 prompt me to Amendment. conjecture that once again the Court is laying the The judgment of the Court of Appeals for the Fifth groundwork for future [***59] decisions that will tell us Circuit in No. 74-611 is reversed. The judgment of the that the question here formally reserved was actually Court of Appeals for the Third Circuit in No. 74-18 is answered against the availability of the privilege. affirmed. Semble, Hudgens v. NLRB, 424 U.S. 507 (1976). [****44] It is therefore appropriate to recall that So ordered. history and this Court have construed the constitutional privilege to safeguard against governmental intrusions MR. JUSTICE STEVENS took no part in the of personal privacy to compel either self-incriminating consideration or disposition of these cases. oral statements or the production of self-incriminating evidence recorded in one's private books and papers. Concur by: BRENNAN; MARSHALL Although as phrased in the Fifth Amendment - "nor shall [any person] be compelled in any criminal case to be a correspondence with the taxpayer in No. 74-611, we assume that the summons sought only "copies" of original letters sent 1 For example, the Court's notation that "[s]pecial problems of from the accountant to the taxpayer - the truth of the contents privacy which might be presented by subpoena of a diary… of which could be testified to only by the accountant. are not involved here," ante, at 401 n. 7, is only made in the 14 In these cases compliance with the subpoena is required context of discussion of the Fourth Amendment and thus even though the books have been kept by the person may readily imply that even a subpoena of a personal diary subpoenaed and his producing them would itself be sufficient containing forthright confessions of crime may not be resisted authentication to permit their introduction against him. on grounds of the privilege.

Kyle Smith Page 17 of 24 425 U.S. 391, *415; 96 S. Ct. 1569, **1583; 48 L. Ed. 2d 39, ***59; 1976 U.S. LEXIS 98, ****44 witness against himself" - the privilege makes no or scope [****47] of its provisions…." United States v. express reference, as does the Fourth Amendment, to Lefkowitz, 285 U.S. 452, 467 (1932). "It has been "papers, and effects," private papers have long been repeatedly decided that [the Fifth Amendment] should held to have the protection of the privilege, designed as receive a liberal construction, so as to prevent stealthy it is "to maintain inviolate large areas of personal encroachment upon or 'gradual depreciation' of the privacy." Feldman v. United States, 322 U.S. 487, 490 rights secured by [it], by imperceptible practice of courts (1944). or by well-intentioned but mistakenly over-zealous executive officers." Gouled v. United States, 255 U.S. [****45] [*416] I 298, 304 (1921). See Maness v. Meyers, 419 U.S. 449, 461 (1975). History and principle, not the mechanical Expressions are legion in opinions of this Court that the application of its wording, have been the life of the protection of personal privacy is a central purpose of the Amendment. 2 privilege against compelled self-incrimination. "[I]t is the invasion of [a person's] indefeasible right of personal [****48] That the privilege does not protect against the security, personal liberty and private property" "that production of private information where there is no constitutes the essence of the offence" that violates the compulsion, or where immunity is granted, or where privilege. Boyd v. United States, supra, at 630. The there is no threat of incrimination in nowise supports the privilege reflects "our respect for the inviolability of the Court's argument demeaning the privilege's protection human personality and of the right of each individual 'to of privacy. The unavailability of the privilege in those a private enclave where he may lead a private life.'" cases only evidences that, as is the case with the First Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 (1964). and Fourth Amendments, the protection of privacy "It respects a private inner sanctum of individual feeling afforded by the privilege is not absolute. The critical and thought and proscribes state intrusion to extract question then is the definition of the scope of privacy self-condemnation." Couch v. United States, supra, at that is sheltered by the privilege. 327. See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 416 (1966); Miranda v. Arizona, 384 U.S. 436, [*418] History and principle teach that the privacy 460, [**1584] (1966). "The Fifth Amendment in its Self- protected by the Fifth Amendment extends not just to Incrimination Clause enables the citizen to create a the individual's immediate declarations, oral or written, zone of privacy which government may not force him to but also to his testimonial materials in the form of books surrender to his detriment." Griswold v. Connecticut, and papers. 3 "The right was originally a 'right of 381 U.S. 479, 484 (1965). [****46] See also Katz v. silence'… only in the sense that legal process could not United States, 389 U.S. 347, 350 n. 5 (1967). force incriminating statements from the defendant's

The Court pays lip service to this bedrock premise of privacy in the statement that "[w]ithin the limits imposed 2 "The privilege against self-incrimination is a specific provision by the language of the Fifth Amendment, which we of which it is peculiarly true that 'a page of history is worth a necessarily observe, the privilege truly serves privacy volume of logic.'" Ullmann v. United States, 350 U.S. 422, 438 interests," ante, at 399. But this only makes explicit (1956) (Frankfurter, J.). "The previous history of the right, both what elsewhere highlights the opinion, namely, the view in England and America, proves that it was not bound by rigid that protection of personal privacy is merely a by definition." L. Levy, Origins of the Fifth Amendment 428 product and not, as our precedents and history teach, a (1968). factor controlling in part the determination of the scope of the privilege. This cart-before-the-horse approach is 3 Indeed, Schmerber v. California, 384 U.S. 757, 764 (1966), fundamentally at odds with the settled principle that the held: scope of the privilege is not constrained by the limits of "Some tests seemingly directed to obtain 'physical evidence,' the [*417] wording of the Fifth Amendment but has the for example, lie detector tests measuring changes in body reach necessary to protect the cherished value of function during interrogation, may actually be directed to privacy which it safeguards. See Schmerber v. eliciting responses which are essentially testimonial. To California, 384 U.S. 757, 761-762, n. 6 [***60] (1966). compel a person to submit to testing in which an effort will be The "Court has always construed provisions of the made to determine his guilt or innocence on the basis of Constitution having regard to the principles upon which physiological responses, whether willed or not, is to evoke the it was established. The direct operation or literal spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege 'is as meaning of the words used do not measure the purpose broad as the mischief against which it seeks to guard.'…"

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[**1585] own lips. Beginning in the early eighteenth (1911); ICC v. Baird, 194 U.S. 25, 45 (1904). It may century the English courts widened that right to include therefore be emphatically stated that until today, there protection against the necessity of producing books and was no room to doubt that it is the Fifth Amendment's documents that might tend to incriminate the accused.. "historic function [to protect an individual] from [****49] .. Lord Mansfield summed up the law by compulsory incrimination through his [*420] own declaring that the defendant, in a criminal case, could testimony or personal records." United States v. White, not be compelled to produce any incriminating supra, at 701 (emphasis supplied). documentary evidence 'though he should hold it in his hands in Court.'" L. Levy, Origins of the Fifth [****51] Amendment 390 (1968). 4 [***61] Thus, in recognizing [****52] The common-law and constitutional extension [*419] the privilege's protection of private books and papers, Boyd v. United States, 116 U.S., at 633, 634- of the privilege to testimonial materials, such as books 635, was faithful to this historical conception of the and papers, was inevitable. An individual's books and privilege. Boyd was reaffirmed in this respect in papers are generally little more than an extension of his Ballmann v. Fagin, 200 U.S. 186 (1906), which held that person. They reveal no less than he could reveal upon an individual could not be compelled to produce a being questioned directly. Many of the matters within an personal cashbook containing incriminating evidence. individual's knowledge may as easily be retained within Schmerber v. California, 384 U.S., at 761, most recently his head as set down on a scrap of paper. I perceive no expressly held "that the privilege protects an accused… principle which does not permit compelling one to from being compelled to testify against himself, or disclose the contents of one's mind but does permit otherwise provide the State with evidence of a compelling the disclosure of the contents of that scrap of testimonial or communicative nature…." (Emphasis paper by compelling its production. Under a contrary supplied.) Indeed, Boyd's holding has often been view, the [***62] constitutional protection [**1586] would reiterated without question. E.g., Bellis v. United States, turn on fortuity, and persons would, at their peril, record 417 U.S. 85, 87 (1974); United States v. Calandra, 414 their thoughts and the events of their lives. The ability to think private thoughts, facilitated as it is by pen and U.S. 338, 346 (1974); [****50] Couch v. United States, 409 U.S. 322 (1973); United States v. Wade, 388 U.S. paper, and the ability to preserve intimate memories 218, 221 (1967);"/> Gilbert v. California, 388 U.S. 263, would be curtailed through fear that those thoughts or 266 (1967); Davis v. United States, 328 U.S. 582, 587- the events of those memories would become the 588 (1946); United States v. White, 322 U.S. 694, 698- subjects of criminal sanctions however invalidly 699 (1944); Wheeler v. United States, 226 U.S. 478, imposed. Indeed, it was the very reality of those fears 489 (1913); Wilson v. United States, 221 U.S. 361, 375 that helped provide the historical impetus [****53] for the privilege. See Boyd v. United States, supra, at 631-632; E. Griswold, The Fifth Amendment Today 8-9 (1955); 8 J. Wigmore, Evidence § 2250, pp. 277-281 4 "The language of the Constitution cannot be interpreted (McNaughton rev. 1961); id., § 2251, pp. 313-314; safely except by reference to the common law and to British McKay, Self-Incrimination and the New Privacy, 1967 institutions as they were when the instrument was framed and Supreme Court Review 193, 212. 5 adopted." Ex parte Grossman, 267 U.S. 87, 108-109 (1925). But, "the common law rule invoked shall be one not rejected by our ancestors as unsuited to their civil or political conditions." Grosjean v. American Press Co., 297 U.S. 233, 5 "And any compulsory discovery by extorting the party's oath, 249 (1936). Without a doubt, the common-law privilege or compelling the production of his private books and papers, against self-incrimination in England extended to protection to convict him of crime, or to forfeit his property, is contrary to against the production of incriminating personal papers prior to the principles of a free government. It is abhorrent to the the adoption of the United States Constitution. See, e.g., Roe instincts of an Englishman; it is abhorrent to the instincts of an v. Harvey, 98 Eng. Rep. 302, 305 (K.B. 1769); King v. Heydon, American. It may suit the purposes of despotic power; but it 96 Eng. Rep. 195 (K.B. 1762); King v. Purnell, 95 Eng. Rep. cannot abide the pure atmosphere of political liberty and 595, 597 (K.B. 1748); King v. Cornelius, 93 Eng. Rep. 1133, personal freedom." Boyd v. United States, 116 U.S., at 631- 1134 (K.B. 1744); Queen v. Mead, 92 Eng. Rep. 119 (K.B. 632. 1703); King v. Worsenham, 91 Eng. Rep. 1370 (K.B. 1701). The significance of this English development on the The proposition, ante, at 409, that Boyd's holding ultimately construction of our Constitution is not in any way diminished rested on the Fourth Amendment could not be more by this country's experience with the privilege prior to the incorrect. Boyd did observe that the purposes to be served by Constitution's adoption. See Levy, supra, at 368-404. the Fourth and Fifth Amendments shed light on each other,

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[****54] [*421] [***63] [**1587] The Court's treatment of 116 U.S., at 633, but the holdings that the compelled the privilege falls far short of giving it the scope required 6 production of the papers involved there violated the Fourth by history and our precedents. It is, of course, true and Fifth Amendments were independent of each other. In "that the Fifth Amendment [*422] protects against holding that "a compulsory production of the private books and 'compelled self-incrimination, not [the disclosure of] papers of the owner of goods sought to be forfeited in such a private information,'" ante, at 401, but it is also true that suit is compelling him to be a witness against himself, within governmental compulsion to produce private information the meaning of the Fifth Amendment to the Constitution, that might incriminate violates the protection of the and is the equivalent of a search and seizure - and an privilege. Similarly, although it is necessary that the unreasonable search and seizure - within the meaning of the papers "contain no testimonial declarations by [the Fourth Amendment," id., at 634-635, the Court plainly did not taxpayer]" in order for the privilege not to operate as a make the Fourth Amendment violation a predicate, let alone bar to production, ante, at 409, it does not follow [*423] an essential predicate, for its holding that there was also a Fifth Amendment violation. The Court is incorrect in that papers are not "testimonial" and thus producible suggesting that "the rule against compelling production of because they contain no declarations. And while it may private papers rested on the proposition that seizures of or be that the unavailability of the privilege depends on a subpoenas for 'mere evidence,' including documents, violated showing that "the preparation of all of the papers sought the Fourth Amendment and therefore also transgressed the in these cases was wholly voluntary," ibid., again it does Fifth." Ante, at 409. The relation of the Fourth Amendment to not follow that the protection is necessarily unavailable if the Fifth Amendment violation in United States v. Lefkowitz, the papers were prepared voluntarily, for it is the 285 U.S. 452 (1932); Agnello v. United States, 269 U.S. 20 compelled production of testimonial evidence, not just (1925); and Gouled v. United States, 255 U.S. 298 (1921), the compelled creation of such evidence, was merely that the illegal searches and seizures in those against [****55] which the privilege protects. cases were held to establish the element of compulsion essential to a Fifth Amendment violation. See ante, at 399- Though recognizing that a subpoena served on a 400, n. 5. Even if the Fourth Amendment violations were now taxpayer involves substantial compulsion, the Court held not to establish the element of Fifth Amendment concludes that since the subpoena does not compel oral compulsion, it, of course, would not follow that the Fifth testimony or require the taxpayer to restate, repeat, or Amendment's protection against compelled production of incriminating private papers is lost. affirm the truth of the contents of the documents sought, compelled production of the documents by the taxpayer Furthermore, that purely evidentiary material may have been would not violate the privilege, even though the seized in those cases was neither relied upon to establish the documents might incriminate the taxpayer. Ante, at Fourth Amendment violations nor, in turn, to establish the 409. This analysis is patently incomplete: the threshold Fifth Amendment violations. Indeed, in Agnello, contraband, inquiry is whether the taxpayer is compelled [****56] to not mere evidence, was illegally seized. Subsequent produce incriminating papers. That inquiry is not decisions modifying the "mere evidence" rule, therefore, have answered in favor of production merely because the left untouched the Fifth Amendment's prohibition against the subpoena requires neither oral testimony from nor compelled production of incriminating testimonial evidence. affirmation of the papers' contents by the taxpayer. To Indeed, citing Warden v. Hayden, 387 U.S. 294 (1967), the be sure, the Court correctly observes that "[t]he Court notes, that the question is open whether the legal taxpayer cannot avoid compliance with the subpoena search and seizure of some forms of testimonial evidence would violate the Fifth Amendment, ante, at 407 n. 9. Warden v. Hayden observed: "The items of clothing involved U.S. 41 (1967), all involving the Fourth Amendment, lends in this case are not 'testimonial' or 'communicative' in nature, support to an argument that the Fifth Amendment would not and their introduction therefore did not compel respondent to protect the seizure of the private papers of a person suspected become a witness against himself in violation of the Fifth of crime. Fifth Amendment challenges to the seizure and Amendment…. This case thus does not require that we use of private papers were not involved in those cases. consider whether there are items of evidential value whose very nature precludes them from being the object of a 6 The grudging scope the Court today gives the privilege reasonable search and seizure." 387 U.S., at 302-303. That against self-incrimination is made evident by its observation observation was plainly addressed not to application of the that "[i]n the case of a documentary subpoena the only thing Fourth Amendment but to application of the Fifth. compelled is the act of producing the document…." Ante, at 410 n. 11. Obviously disclosure or production of testimonial Contrary to the Court's intimations, ante, at 407-408, neither evidence is also compelled, and the heart of the protection of Katz v. United States, 389 U.S. 347 (1967); Osborn v. United the privilege is in its safeguarding against compelled States, 385 U.S. 323 (1966); nor Berger v. New York, 388 disclosure or production of that evidence.

Kyle Smith Page 20 of 24 425 U.S. 391, *423; 96 S. Ct. 1569, **1587; 48 L. Ed. 2d 39, ***63; 1976 U.S. LEXIS 98, ****56 merely by asserting that the item of evidence which he sought to be produced has been disclosed to or was is required to produce contains incriminating writing, within the knowledge of a third party. 409 U.S., at 332- whether his own or that of someone else." Ante, at 410 333. That is to say, one relevant consideration is the (emphasis supplied). For it is not enough that the degree to which the paper holder has sought to keep production of a writing, or books and papers, is private the contents of the papers he desires not to compelled. Unless those materials are such as to come produce. within the zone of privacy recognized by the Amendment, the privilege against compulsory self- Most recently, Bellis v. United States, 417 U.S. 85 incrimination does not protect against their production. (1974), followed the approach taken in Wilson. Bellis held that the partner of a small law firm could not invoke [*424] [***64] We are not without guideposts for the privilege against self-incrimination to justify his determining what books, papers, and writings come refusal to comply with a subpoena requiring production within the zone of privacy recognized by the of the partnership's financial records. Bellis stated: "It Amendment. In Wilson v. United States, 221 U.S. 361 has long been [****59] established? that the Fifth (1911), for example, the Court held that the Fifth Amendment privilege against compulsory self- Amendment did not protect against the subpoena of incrimination protects an individual from compelled corporate records in the possession and control of the production of his personal papers and effects as well as president of a corporation, even though [****57] the compelled oral testimony…. The privilege applies to the records might have incriminated him. Though the business records of the sole proprietor or sole evidence was testimonial, though its production was practitioner as well as to personal documents containing compelled, and though it would have incriminated the more intimate information about the individual's private party producing it, the Fifth Amendment was no bar. life." 417 U.S., at 87-88. [***65] Bellis also recognized The Court recognized that the Amendment that the Court's "decisions holding the privilege "[u]ndoubtedly… protected [the president] against the inapplicable to the records of a collective entity also compulsory production of his private books and papers," reflect… the protection of an individual's right to a id., at 377, but with respect to corporate records, the 'private enclave where he may lead a private life.'… Court held: S Protection of individual privacy was the major theme running through the Court's decision in Boyd… and it "[T]hey are of a character which subjects them to the was on this basis that the Court in Wilson distinguished scrutiny demanded…. This was clearly implied in the the corporate records involved in that case from the Boyd Case where the fact that the papers involved were private papers at issue in Boyd." Id., at 91-92. the private papers of the claimant was constantly "[C]orporate [*426] records do not contain the requisite emphasized. Thus, in the case of public records and element of privacy or confidentiality essential for the official documents, made or kept in the [**1588] privilege to attach." Id., at 92. Bellis concluded that the administration of public office, the fact of actual same considerations which precluded [****60] reliance possession or of lawful custody would not justify the upon the privilege with respect to corporate records also officer in resisting inspection, even though the record precluded reliance upon it with respect to partnership was made by himself and would supply the evidence of records in the circumstances of that case. 7 his criminal dereliction." Id., at 380 (emphasis in original).I A precise cataloguing of private papers within the ambit of the privacy protected by the privilege is probably Couch v. United States expressly held that the Fifth impossible. Some papers, however, do lend Amendment protected against the compelled production themselves to classification. See generally Comment, of testimonial evidence [****58] only if the individual resisting production had a reasonable expectation of privacy with respect to the evidence. 409 U.S., at 336. 7 With respect to a partnership invoice, it thus seems fair to Couch relied on Perlman v. United States, 247 U.S. 7 say, as the Court does, ante, at 408, "that under [Bellis] the (1918), [*425] where the Court permitted the use precise claim sustained in Boyd would now be rejected for against the defendant of documentary evidence reasons not there considered." Bellis, however, took care to belonging to him because "there was a voluntary point out: "We do not believe the Court in Boyd can be said to have decided the issue presented today," 417 U.S., at 95 n. 2, exposition of the articles" rather than "an invasion of the thereby leaving unaltered Boyd's more general or "imprecise" defendant's privacy." Id., at 14."/> Under Couch, holding protecting against the compelled production of private therefore, one criterion is whether or not the information papers.

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The Search and Seizure of Private Papers: Fourth and U.S., at 378, stated: "[T]he mere fact that [*428] the Fifth Amendment Considerations, 6 Loyola (LA) L. Rev. appellant himself wrote, or signed, the [documents], 274, 300-303 (1973). [****61] Production of neither conditioned nor enlarged his privilege. Where documentary materials created or authenticated by a one's private documents would tend to incriminate him, State or the Federal Government, such as automobile the privilege exists although they were actually written registrations or property deeds, would seem ordinarily to by another person." 8 Thus, although "[t]he fact that the fall outside the protection of the privilege. They hardly documents may have been written by the person reflect an extension of the person. asserting the privilege is insufficient to trigger the privilege," ante, at 410 n. 11, and "the fact that it was [**1589] Economic and business records may present written by him is not controlling…," ibid., this is not to difficulty in particular cases. The records of business say that the privilege is available only as to documents entities generally fall without the scope of the privilege. written by him. For the reasons I have stated at the But, as noted, the Court has recognized that the outset, however, I do not believe that the evidence privilege extends to the business records of the sole involved in these cases falls within the scope of privacy proprietor or practitioner. Such records are at least an protected by the Fifth Amendment. extension of an aspect of a person's activities, though concededly [*427] not the more intimate aspects of [****64] II one's life. Where the privilege would have protected one's mental notes of his business affairs in a less I also question the Court's treatment of the question complicated day and age, it would seem that that whether the act of producing evidence is "testimonial." I protection should not fall away because the complexities agree that the act of production implicitly admits the of another time compel one to keep business records. existence of the evidence requested and possession or Cf. Olmstead v. United States, 277 U.S. 438, 474 control of that evidence by the party producing it. It also (1928) (Brandeis, J., dissenting). Nonbusiness implicitly authenticates the evidence as that identified in economic records in the possession of an individual, the order to compel. I disagree, however, that implicit such as canceled checks or tax records, would admission of the existence and possession or control of also [****62] seem to be protected. They may provide the papers in this case is not "testimonial" merely clear insights into a person's total lifestyle. They are, because the Government could readily have otherwise however, like business records and the papers involved proved existence and possession or control in these in these cases, frequently, though not always, disclosed cases. [*429] I know of no Fifth Amendment principle to other parties; and disclosure, in proper cases, may which makes [**1590] the testimonial nature of evidence foreclose reliance upon the privilege. Personal letters and, therefore, one's protection against incriminating constitute an integral aspect of a person's private himself, turn on the strength of the Government's case enclave. And while letters, being necessarily against him. interpersonal, are [***66] not wholly private, their Nor do I consider the taxpayers' implicit authentication peculiarly private nature and the generally narrow extent an insubstantial threat of self-incrimination. Actually, of their disclosure would seem to render them within the authentication of the papers as those described in the scope of the privilege. Papers in the nature of a subpoenas establishes the papers as the taxpayers', personal diary are a fortiori protected under the thereby supplying an incriminatory link in the chain of privilege. evidence against them. It is not the less so [***67] because [****65] the taxpayers' accountants may also The Court's treatment in the instant cases of the provide the link, since the protection against self- question whether the evidence involved here is within incrimination cannot, I repeat, turn on the strength of the the protection of the privilege is, with all respect, most Government's case. inadequate. The gaping hole is in the omission of any reference to the taxpayer's privacy interests and to whether the subpoenas impermissibly invade those interests. The observations that the "accountant's 8 workpapers are not the taxpayer's" and "were not Similarly, United States v. Nobles, 422 U.S. 225 (1975), held that the Fifth Amendment did not bar production of a defense prepared by the taxpayer," ante, at 409, touch on investigator's summaries of interviews with witnesses. The matters relevant to the [****63] taxpayer's expectation of Court carefully noted, however, that there was no indication privacy, but do not of themselves determine the that the summaries contained any information conveyed by availability of the privilege. Wilson v. United States, 221 the defendant to the investigator. Id., at 234.

Kyle Smith Page 22 of 24 425 U.S. 391, *429; 96 S. Ct. 1569, **1590; 48 L. Ed. 2d 39, ***67; 1976 U.S. LEXIS 98, ****65

This Court's treatment of handwriting exemplars is not [****67] MR. JUSTICE MARSHALL, concurring in the supportive of its position. See Gilbert v. California, 388 judgment. U.S. 263 (1967). The Court has only recognized that "[a] mere handwriting exemplar…, like the voice or body Today the Court adopts a wholly new approach for itself, is an identifying physical characteristic outside its deciding when the Fifth Amendment privilege against protection." Id., at 266-267. It is because handwriting self-incrimination can be asserted to bar production of exemplars are viewed as strictly nontestimonial, not documentary evidence. 1 This approach has, in various because they are insufficiently testimonial, that the Fifth [*431] forms, been discussed by commentators for Amendment does not protect against their compelled some time; nonetheless, as I noted a few years ago, the production. Also not supportive of the Court's position is theory "has an odd sound to it." Couch v. United States, the principle that the custodian of documents of a 409 U.S. 322, 348 (1973) (dissenting). The Fifth collective entity is not protected from the act of Amendment [***68] basis for resisting production producing those documents. Nothing in the language of [**1591] of a document pursuant to subpoena, the Court those cases, either expressly or impliedly, indicates that tells us today, lies not in the document's contents, as we the act of production with respect to the records of previously have suggested, but in the tacit verification business entities is insufficiently testimonial for inherent in the act of production itself that the document purposes of the Fifth Amendment. At most, those exists, is in the possession of the producer, and is the issues, though considered, were disposed of on the one sought by the subpoena. ground, not that [****66] production was insufficiently testimonial, but that one in control of the records of an This technical and somewhat esoteric focus on the artificial organization [*430] undertakes an obligation testimonial elements of production [****68] rather than with respect to those records foreclosing any exercise of on the content of the evidence the investigator seeks is, his privilege. 9 as MR. JUSTICE BRENNAN demonstrates, contrary to the history and traditions of the privilege against self- incrimination both in this country and in England, where the privilege originated. A long line of precedents in this 9 Individuals acting as representatives of a collective group "assume the rights, duties and privileges of the artificial entity Court, whose rationales if not holdings are overturned or association of which they are agents or officers and they by the Court today, support the notion that "any forcible are bound by its obligations." United States v. White, 322 U.S. and compulsory extortion of a man's… private papers to 694, 699 (1944). "In view of the inescapable fact that an be used as evidence to convict him of crime" compels artificial entity can only act to produce its records through its him to be a witness against himself within the meaning individual officers or agents, recognition of the individual's of the Fifth Amendment to the Constitution. d">Boyd v. claim of privilege with respect to the financial records of the United States, 116 U.S. 616, 630 (1886). See also Bellis organization would substantially undermine the unchallenged v. United States, 417 U.S. 85, 87 (1974); Couch v. rule that the organization itself is not entitled to claim any Fifth United States, supra, at 330; Schmerber v. California, Amendment privilege, and largely frustrate legitimate 384 U.S. 757, 763-764 (1966); Davis v. United States, governmental regulation of such organizations." Bellis v. 328 U.S. 582, 587-588 (1946); United States v. White, United States, 417 U.S., at 90. Indeed, in one of the more 322 U.S. 694, 698-699 (1944); Wheeler v. United recent corporate records cases, Curcio v. United States, 354 U.S. 118, 125 (1957), the Court expressly recognized that States, 226 U.S. 478, 489 (1913); d">Wilson v. United "[t]he custodian's act of producing books or records in States, 221 U.S. 361, 377 (1911). response to a subpoena duces tecum is itself a representation that the documents produced are those demanded by the However analytically imprecise these cases may be, subpoena." The Court in Curcio, however, apparently did not they represent [****69] a deeply held belief on the part of note any self-incrimination problem because of the the Members of this Court throughout its history that undertaking by the custodian with respect to the documents. there [*432] are certain documents no person ought to (One charged with failure to comply with an order to produce, be compelled to produce at the Government's request. however, may not thereafter be compelled to testify as to the While I welcome the Court's attempt to provide a existence or his control of the documents. See Curcio v. rationale for this longstanding rule, it is incumbent upon United States, supra.) In the present cases, of course, the taxpayers are not representatives of any artificial entity and incrimination in these cases resulting from the act of have not undertaken any obligation with respect to that entity production itself. or its documents. They have stipulated, however, that the documents involved here exist and are those described in the 1 The Court's theory would appear to apply to real evidence as subpoenas, thereby obviating any problem as to self- well.

Kyle Smith Page 23 of 24 425 U.S. 391, *432; 96 S. Ct. 1569, **1591; 48 L. Ed. 2d 39, ***68; 1976 U.S. LEXIS 98, ****69 the Court, I believe, to fashion its theory so as to protect Walker, 161 U.S. 591 (1896); Counselman v. Hitchcock, those documents that have always stood at the core of 142 U.S. 547 (1892). Thus, in practice, the Court's the Court's concern. Thus, I would have preferred it had approach should still focus upon the private nature of the Court found some room in its theory for recognition the papers subpoenaed and protect those about which of the import of the contents of the documents Boyd and its progeny were most concerned. themselves. See Couch v. United States, supra, at 350 (MARSHALL, J., dissenting). The Court's theory will also limit the prosecution's ability to use documents secured through a grant of immunity. Nonetheless, I am hopeful that the Court's new theory, If authentication that the document produced is the properly understood and applied, will provide document demanded were the only testimony inherent substantially the same protection as our prior focus on in production, immunity would be a useful tool for the contents of the documents. The Court recognizes, obtaining [****72] written evidence. So long as a as others have argued, that the act of production can document obtained under an immunity grant could be verify the authenticity of the documents produced. See, authenticated through other sources, as would often be e.g., United States v. Beattie, 522 F. 2d 267 (CA2 possible, reliance on the immunized testimony - the 1975), cert. pending, Nos. 75-407, 75-700. But the authentication - and its fruits would not be necessary, promise of the Court's theory lies in its innovative and the document could be introduced. The Court's discernment that production [****70] may also verify the recognition that the act of production also involves documents' very existence and present possession by testimony about the existence and possession of the the producer. This expanded recognition of the kinds of subpoenaed documents mandates a different result. testimony inherent in production not only rationalizes the Under the Court's theory, if the document is to be cases, but seems to me to afford almost complete obtained the [*434] immunity grant must extend to the protection against compulsory production of our most testimony that the document is presently in existence. private papers. Such a grant will effectively shield the contents of the document, for the contents are a direct fruit of the Thus, the Court's rationale provides a persuasive basis immunized testimony - that the document exists - and for distinguishing between the corporate-document cannot usually be obtained without reliance on that [***69] cases and those involving the papers of private testimony. 2 Accordingly, the Court's theory offers citizens. Since the existence of corporate record books [***70] substantially the same protection against is seldom in doubt, the verification of their existence, procurement of documents under grant of immunity that inherent in their production, may fairly be termed not our prior cases afford. testimonial at all. On the other hand, there is little reason to assume the present existence and possession [****73] In short, while the Court sacrifices our of most private papers, and certainly not those MR. pragmatic, if somewhat ad hoc, content analysis for JUSTICE BRENNAN places at the top of his list of what might seem an unduly technical focus on the act of documents that the privilege should protect. See ante, production itself, I am far less pessimistic than MR. at 426-427 (concurring in judgment). [*433] Indeed, JUSTICE BRENNAN that this new approach signals the there would appear to be a precise inverse relationship end of Fifth Amendment protection for documents we between the private nature of the document and the have long held to be privileged. I am not ready to permissibility of assuming [**1592] its existence. embrace the approach myself, but I am confident in the Therefore, under the Court's theory, the admission ability of the trial judges who must apply this difficult test through production [****71] that one's diary, letters, prior tax returns, personally maintained financial records, or canceled checks exist would ordinarily provide 2 Similarly, the Court's theory affords protection to one who substantial testimony. The incriminating nature of such possesses documents that he cannot authenticate. If an admission is clear, for while it may not be criminal to authentication were the only relevant testimony inherent in the keep a diary, or write letters or checks, the admission act of production, such a person would be forced to relinquish that one does and that those documents are still his documents, for he provides no authentication testimony of available may quickly - or simultaneously - lead to relevance by producing them in response to a subpoena. See United States v. Beattie, 522 F. 2d 267 (CA2 1975), cert. incriminating evidence. If there is a "real danger" of pending, Nos. 75-407, 75-700. Under the Court's theory, such a result, that is enough under our cases to make however, if the existence of these documents were in such testimony subject to the claim of privilege. See question, the custodian would still be able to assert a claim of Rogers v. United States, 340 U.S. 367 (1951); Brown v. privilege against their production.

Kyle Smith Page 24 of 24 425 U.S. 391, *434; 96 S. Ct. 1569, **1592; 48 L. Ed. 2d 39, ***70; 1976 U.S. LEXIS 98, ****73 in the first instance to act with sensitivity to our exemplar. 43 ALR3d 653. traditional concerns in this uncertain area. Privilege against self-incrimination as ground for refusal For the reasons stated by MR. JUSTICE BRENNAN, I to produce noncorporate documents [****75] in concur in the judgment of the Court. possession of person asserting privilege but owned by another. 37 ALR3d 1373. References Supreme Court's views as to application of Fifth Privilege against disclosure of matters arising out of Amendment privilege against self-incrimination to transactions or relationship between accountant and compulsory production of documents client. 38 ALR2d 670.

21 Am Jur 2d, Criminal Law 349, 353- 355; 34 Am Jur 2d, Federal Taxation 9024; 81 Am Jur 2d, Witnesses 30- 35, 44, 176, 204, 205 End of Document

13 Am Jur Trials 1, Defending Federal Tax Evasion Cases

USCS, Constitution, 5th Amendment

US L Ed Digest, Evidence 699, 701; Witnesses 76

ALR Digests, Evidence 1006, 1010; Witnesses 78

L Ed Index to Annos, [****74] Attorney and Client; Production of Books and Papers; Witnesses

ALR Quick Index, Privileged Communications; Production of Books and Papers; Self-Incrimination

Federal Quick Index, Self-Incrimination; Tax Enforcement; Tax Returns and Records

Annotation References:

Supreme Court's views as to application of Fifth Amendment privilege against self-incrimination to compulsory production of documents. 48 L Ed 2d 852.

Supreme Court's views as to the federal legal aspects of the right of privacy. 43 L Ed 2d 871.

Physical examination or exhibition of, or test upon, suspect or accused, as violating rights guaranteed by Federal Constitution. 16 L Ed 2d 1332, 22 L Ed 2d 909.

What matters are protected by attorney-client privilege or are proper subject of inquiry by Internal Revenue Service where attorney is summoned in connection with taxpayer-client under federal tax examination. 15 ALR Fed 771.

Propriety of requiring accused to give handwriting

Kyle Smith Caution As of: December 12, 2016 8:50 PM EST

Gregg v. Georgia

Supreme Court of the United States Argued March 31, 1976 ; July 2, 1976 No. 74-6257

Reporter 428 U.S. 153 *; 96 S. Ct. 2909 **; 49 L. Ed. 2d 859 ***; 1976 U.S. LEXIS 82 **** statute that ensured that the sentencing authority was GREGG v. GEORGIA given adequate information and guidance. With regard to the Georgia statute, the Court held that the statutory Prior History: CERTIORARI TO THE SUPREME system under which defendant was sentenced, which COURT OF GEORGIA focused the jury's attention on the particularized nature of the crime and the particularized characteristics of the Disposition: The Supreme Court affirmed the decision individual defendant and provided a method for review, of the Georgia Supreme Court. did not violate the Constitution.

Core Terms Outcome death penalty, murder, sentence, death sentence, The Supreme Court affirmed the decision of the Georgia cases, capital punishment, aggravating circumstances, Supreme Court. juries, convicted, armed robbery, eighth amendment, circumstances, offender, punishments, homicide, felony, LexisNexis® Headnotes infliction, impose sentence, similar case, retribution, deterrent, kidnapping, killed, offense of murder, Criminal Law & Procedure > Sentencing > Capital disproportionate, robbery, statutes, counts, cruel, guilt Punishment > Cruel & Unusual Punishment

Case Summary HN1 The punishment of death does not invariably violate the United States Constitution.

Procedural Posture Criminal Law & Procedure > Sentencing > Capital Defendant sought certiorari review of a decision from Punishment > Cruel & Unusual Punishment the Supreme Court of Georgia, which affirmed defendant's convictions and the imposition of the death HN2 The Eighth Amendment is not regarded as a static sentences for murder, challenging the imposition of the concept. The amendment must draw its meaning from death sentences as cruel and unusual punishment in the evolving standards of decency that mark the violation of the Eighth and the Fourteenth Amendments. progress of a maturing society. Thus, an assessment of contemporary values concerning the infliction of a Overview challenged sanction is relevant to the application of the Upon certiorari review, the Supreme Court held that the Eighth Amendment. This assessment does not call for a punishment of death did not invariably violate the United subjective judgment. It requires, rather, that the courts States Constitution; that the death penalty was not a look to objective indicia that reflect the public attitude form of punishment that could never be imposed, toward a given sanction. regardless of the circumstances of the offense, regardless of the character of the offender, and Constitutional Law > Bill of Rights > Fundamental regardless of the procedure followed in reaching the Rights > Cruel & Unusual Punishment decision to impose it; and that the concerns that the Criminal Law & Procedure > Sentencing > Capital penalty of death not be imposed in an arbitrary or Punishment > Cruel & Unusual Punishment capricious manner were met by a carefully drafted Criminal Law & Procedure > Sentencing > Cruel & Unusual

Kyle Smith Page 2 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****82

Punishment democratically elected legislature against the constitutional measure, the courts presume its validity. HN3 Public perceptions of standards of decency with The courts may not require the legislature to select the respect to criminal sanctions are not conclusive. A least severe penalty possible so long as the penalty penalty also must accord with "the dignity of man," selected is not cruelly inhumane or disproportionate to which is the basic concept underlying the Eighth the crime involved. And a heavy burden rests on those Amendment. This means, at least, that the punishment who would attack the judgment of the representatives of not be "excessive." When a form of punishment in the the people. abstract rather than in the particular is under consideration, the inquiry into "excessiveness" has two Constitutional Law > ... > Fundamental Rights > Procedural aspects. First, the punishment must not involve the Due Process > General Overview unnecessary and wanton infliction of pain. Second, the Constitutional Law > Bill of Rights > Fundamental punishment must not be grossly out of proportion to the Rights > Cruel & Unusual Punishment severity of the crime. Criminal Law & Procedure > Sentencing > Capital Constitutional Law > Bill of Rights > Fundamental Punishment > General Overview Rights > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Capital Criminal Law & Procedure > Sentencing > Cruel & Unusual Punishment > Cruel & Unusual Punishment Punishment HN7 It is apparent from the text of the Constitution itself Governments > Legislation > Enactment that the existence of capital punishment was accepted by the Framers. HN4 The requirements of the Eighth Amendment must be applied with an awareness of the limited role to be Constitutional Law > Bill of Rights > Fundamental played by the courts. This does not mean that judges Rights > Cruel & Unusual Punishment have no role to play, for the Eighth Amendment is a Criminal Law & Procedure > Sentencing > Cruel & Unusual restraint upon the exercise of legislative power. Judicial Punishment review, by definition, often involves a conflict between judicial and legislative judgment as to what the HN8 The Eighth Amendment demands more than that a Constitution means or requires. In this respect, Eighth challenged punishment be acceptable to contemporary Amendment cases come to the courts in no different society. The court also must ask whether it comports posture. It seems conceded by all that the amendment with the basic concept of human dignity at the core of imposes some obligations on the judiciary to judge the the amendment. Although the court cannot invalidate a constitutionality of punishment and that there are category of penalties because the court deem less punishments that the amendment would bar whether severe penalties adequate to serve the ends of legislatively approved or not. penology, the sanction imposed cannot be so totally without penological justification that it results in the Constitutional Law > The Judiciary > Congressional Limits gratuitous infliction of suffering. HN5 While the courts have an obligation to insure that Criminal Law & Procedure > Sentencing > Capital constitutional bounds are not overreached, the courts Punishment > General Overview may not act as legislators. Courts are not representative bodies. They are not designed to be a good reflex of a HN9 The death penalty is said to serve two principal democratic society. Their judgment is best informed, social purposes: retribution and deterrence of capital and therefore most dependable, within narrow limits. crimes by prospective offenders. Their essential quality is detachment, founded on independence. Criminal Law & Procedure > Sentencing > Capital Punishment > Cruel & Unusual Punishment Constitutional Law > ... > Case or Controversy > Constitutionality of Legislation > General HN10 The value of capital punishment as a deterrent of Overview crime is a complex factual issue the resolution of which Criminal Law & Procedure > Sentencing > Proportionality properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own HN6 In assessing a punishment selected by a local conditions and with a flexibility of approach that is

Kyle Smith Page 3 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****82 not available to the courts. relevant to the imposition of sentence and provided with standards to guide its use of the information. Criminal Law & Procedure > Sentencing > Capital Punishment > General Overview Criminal Law & Procedure > Sentencing > Capital Punishment > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Capital Punishment > Cruel & Unusual Punishment HN15 See Ga. Code Ann. § 26-1101 (1972). HN11 The death penalty is not a form of punishment Criminal Law & Procedure > ... > Murder > Capital that may never be imposed, regardless of the Murder > Penalties circumstances of the offense, regardless of the character of the offender, and regardless of the Criminal Law & Procedure > Sentencing > Capital procedure followed in reaching the decision to impose it. Punishment > General Overview

Criminal Law & Procedure > Sentencing > Capital HN16 In order to minimize the risk that the death Punishment > Cruel & Unusual Punishment penalty is imposed on a capriciously selected group of offenders, the decision to impose it has to be guided by HN12 Where discretion is afforded a sentencing body standards so that the sentencing authority would focus on a matter so grave as the determination of whether a on the particularized circumstances of the crime and the human life should be taken or spared, that discretion defendant. must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. Lawyers' Edition Display

Criminal Law & Procedure > Sentencing > Appeals > Capital Punishment Summary Criminal Law & Procedure > Sentencing > Capital Punishment > General Overview After the United States Supreme Court's decision in Furman v Georgia (1972) 408 US 238, 33 L Ed 2d 346, HN13 While standards to guide a capital jury's 92 S Ct 2726--which held that the imposition of the sentencing deliberations are by necessity somewhat death sentence under Georgia (and Texas) statutes general, they do provide guidance to the sentencing constituted cruel and unusual punishment in violation of authority and thereby reduce the likelihood that it will the Eighth and Fourteenth Amendments because under impose a sentence that fairly can be called capricious or such statutes the juries had untrammeled discretion to arbitrary. Where the sentencing authority is required to impose or withhold the death penalty--the Georgia specify the factors it relied upon in reaching its decision, legislature amended its statutory scheme. Under the the further safeguard of meaningful appellate review is new statutory provisions with regard to imposition of the available to ensure that death sentences are not death penalty for the crime of murder and other imposed capriciously or in a freakish manner. offenses, (1) guilt or innocence is determined, either by a jury or the trial judge, in the first stage of a bifurcated Criminal Law & Procedure > Sentencing > Capital trial, with the judge being required to charge the jury as Punishment > General Overview to any lesser included offenses when supported by the evidence, (2) after a verdict, finding, or plea of guilty, a Criminal Law & Procedure > Sentencing > Capital Punishment > Bifurcated Trials presentence hearing is conducted, where the jury (or judge in a case tried without a jury) hears argument and Criminal Law & Procedure > Sentencing > Capital additional evidence in mitigation or aggravation of Punishment > Cruel & Unusual Punishment punishment, (3) at least one of ten aggravating circumstances specified in the statutes must be found to HN14 The concerns expressed in Furman that the exist beyond a reasonable doubt, and must be penalty of death not be imposed in an arbitrary or designated in writing, before the jury (or judge) may capricious manner can be met by a carefully drafted impose the death sentence on a defendant convicted of statute that ensures that the sentencing authority is murder, the trial judge in jury cases being bound by the given adequate information and guidance. As a general jury's recommended sentence, (4) on automatic appeal proposition these concerns are best met by a system of a death sentence, the Supreme Court of Georgia that provides for a bifurcated proceeding at which the must determine whether the sentence was imposed sentencing authority is apprised of the information

Kyle Smith Page 4 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****82 under the influence of passion, prejudice, or any other severity--nevertheless a legislature was not required to arbitrary factor, whether the evidence supported the select the least severe penalty possible, so long as the finding of a statutory aggravating circumstance, and penalty selected was not cruelly inhumane or whether the death sentence was excessive or disproportionate to the crime involved, and a heavy disproportionate to the penalty imposed in similar cases, burden rested on those attacking the judgment of the considering both the crime and the defendant, and (5) if representatives of the people, (c) at the time the a death sentence is affirmed, the decision of the Constitution and its amendments were adopted, capital Georgia Supreme Court must include reference to punishment was accepted as a common sanction, and similar cases that the court considered. Upon a jury trial the Supreme Court, for nearly 200 years, had in a Georgia state court under the new statutory repeatedly recognized that capital punishment was not scheme, the defendant was convicted of two counts of invalid per se, (d) after the decision in the Furman case, armed robbery and two counts of murder, and the jury, at least 35 states enacted new statutes providing for the after the penalty hearing in the bifurcated procedure, death penalty for certain crimes, thus indicating society's returned a sentence of death on each count, finding as endorsement of the death penalty, (e) retribution and statutory aggravating conditions that the murder deterrence, as social purposes served by the death offenses were committed while the defendant was penalty, were matters that could properly be considered engaged in the commission of the two other capital by legislatures in terms of their own local conditions, felonies of armed robbery of the murder victims, and and (f) capital punishment for murder could not be said that the defendant committed the murders for the to be invariably disproportionate to the crime, but purpose of receiving money and an automobile of one of instead was an extreme sanction, suitable to the most the victims. After reviewing the trial record and extreme of crimes; (2) the concerns expressed in the comparing the evidence and sentence in similar cases, Furman decision that the death penalty not be imposed the Georgia Supreme Court affirmed the convictions in an arbitrary or capricious manner could be met by a and the imposition of the death sentences for murder, carefully drafted statute ensuring that the sentencing although the Georgia Supreme Court vacated the death authority was given adequate guidance and information sentences imposed for armed robbery on the grounds for determining the appropriate sentence, a bifurcated that the death penalty had rarely been imposed for that sentencing proceeding being preferable as a general offense and the jury had improperly considered the proposition; (3) the Georgia capital--sentencing murders as aggravating circumstances for the robberies procedures were constitutional, since they required the after having considered the robberies as aggravating jury to consider the circumstances of the crime and the circumstances for the murders (233 Ga 117, 210 SE2d character of the defendant before recommending 659). sentence, and required the Georgia Supreme Court to determine whether a death sentence was the result of On certiorari, the United States Supreme Court affirmed. passion or prejudice, was supported by evidence Although unable to agree on an opinion, seven establishing a statutory aggravating circumstance, and members of the court agreed that the imposition of the was not disproportionate in comparison with sentences death penalty for the crime of murder under the Georgia imposed on similarly situated defendants in other cases; statutes did not violate the prohibition against the (4) the Georgia statutes were not rendered infliction of cruel and unusual punishment under the unconstitutional merely because of the opportunities for Eighth and Fourteenth Amendments. discretionary action inherent in the processing of any murder case under Georgia law with regard to the Stewart, Powell, and Stevens, JJ., announced the prosecutor's unfettered authority to select those persons judgment of the court and filed an opinion, delivered by who would be prosecuted for a capital offense and to Stewart, J., expressing the view that (1) the death plea bargain with them, the jury's power to convict a penalty did not, under all circumstances, constitute cruel defendant of a lesser included offense, or the authority and unusual punishment, since (a) the Eighth of the Governor and the Georgia Board of Pardons and Amendment was not to be regarded as a static concept, Paroles to commute a death sentence; (5) the Georgia but was to draw its meaning from the evolving standards statutes, particularly the provisions specifying of decency that marked the progress of a maturing aggravating circumstances, were not so vague or society, (b) although public perceptions of standards of overbroad as to leave juries free to act arbitrarily and decency were not conclusive--the Eighth Amendment capriciously in imposing the death penalty, there being requiring that punishment must accord with the dignity no reason to assume that the statutes would be given of man and not be excessive either as to its form or open-ended construction by the Georgia Supreme

Kyle Smith Page 5 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****82

Court, which had already held that certain provisions should hold that the punishment of death, for whatever were impermissibly vague; and (6) the state court crime and under all circumstances, was cruel and properly allowed a wide scope of evidence and unusual, in violation of the Eighth and Fourteenth argument at presentence hearings, it being desirable for Amendments. the jury to have as much information before it as possible when it made the sentencing decision. Marshall, J., dissented, expressing the view that the death penalty was cruel and unusual punishment White, J., joined by Burger, Ch. J., and Rehnquist, J., prohibited by the Eighth and Fourteenth Amendments concurred in the judgment, expressing the view that (1) because it was excessive, being unnecessary to the death penalty imposed for murder under the new promote the goal of deterrence of crime or to further any Georgia statutory scheme could be constitutionally legitimate notion of retribution. carried out, since (a) the statutes not only guided the jury in its exercise of discretion in determining whether it Headnotes would impose the death penalty, but also gave the Georgia Supreme Court the power and duty to decide LAW §82 > cruel and unusual punishment -- death penalty -- whether in fact the death penalty was being > Headnote: administered for any given class of crime in a LEdHN[1A] [1A]LEdHN[1B] [1B]LEdHN[1C] discriminatory, standardless, or rare fashion, and (b) the [1C]LEdHN[1D] [1D] defendant had failed to establish that the Georgia Supreme Court had not performed its task in the instant The prohibition against the infliction of cruel and unusual case or that it was incapable of performing its task punishment under the Eighth and Fourteenth adequately in all cases; (2) the statutory scheme was Amendments is not violated by the imposition of the not unconstitutional on the ground that the prosecutor's death penalty for the crime of murder under a state's decisions in negotiating pleas or in declining to charge statutory scheme whereby (1) guilt or innocence is capital murder were standardless, since it could not be determined, either by a jury or the trial judge, in the first assumed that prosecutors would be motivated by stage of a bifurcated trial, with the judge being required factors other than the strength of their case and the to charge the jury as to any lesser included offenses likelihood that a jury would impose the death penalty if it when supported by any view of the evidence, (2) after a convicted; and (3) the defendant's contention that the verdict, finding, or plea of guilty, a presentence hearing death penalty, however imposed and for whatever is conducted, where the jury (or judge in a case tried crime, constituted cruel and unusual punishment was without a jury) hears argument and additional evidence without merit. in mitigation or aggravation of punishment, (3) at least one of 10 aggravating circumstances specified in the Burger, Ch. J., and Rehnquist, J., filed a statement statutes must be found to exist beyond a reasonable joining the opinion of White, J., agreeing with its doubt, and must be designated in writing, before the jury analysis that Georgia's system of capital punishment (or judge) may elect to impose the death sentence on a comported with the holding in the Furman case. defendant convicted of murder, the trial judge in jury cases being bound by the jury's recommended Blackmun, J., concurred in the judgment, referring to his sentence, (4) on automatic appeal of a death sentence, dissenting opinion in the Furman case. the state's highest court must determine whether the sentence was imposed under the influence of passion, Brennan, J., dissenting, expressed the view that (1) the prejudice, or any other arbitrary factor, whether the cruel and unusual punishment clause must draw its evidence supported the finding of a statutory meaning from evolving standards of decency that aggravating circumstance, and whether the death marked the progress of a maturing society, (2) the sentence was excessive or disproportionate to the consideration of "evolving standards of decency" penalty imposed in similar cases, considering both the required focusing upon the essence of the death penalty crime and the defendant, and (5) if a death sentence is itself, and not primarily or solely upon the procedure affirmed, the decision of the state's highest court must under which the determination to inflict the penalty upon include reference to similar cases that the court a particular person was made, (3) the death penalty considered. [Per Stewart, J., Powell, J., Stevens, J., served no penal purpose more effectively than a less White, J., Burger, Ch. J., Rehnquist, J., and Blackmun, severe punishment would, and (4) our civilization and J.] the law had progressed to the point where the court

Kyle Smith Page 6 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****82

LAW §82 > cruel and unusual punishment -- death penalty -- resulted from prejudice or any other arbitrary factor and > Headnote: were not excessive or disproportionate to the penalty LEdHN[2A] [2A]LEdHN[2B] [2B] applied in similar cases, but vacated the armed robbery sentences on the ground, inter alia, that the death The death penalty does not, under all circumstances, penalty had rarely been imposed in Georgia for that constitute cruel and unusual punishment in violation of offense. Petitioner challenges imposition of the death the Eighth and Fourteenth Amendments. [Per Stewart, sentence under the Georgia statute as "cruel and J., Powell, J., Stevens, J., White, J., Burger, Ch. J., and unusual" punishment under the Eighth and Fourteenth Rehnquist, J.] Amendments. That statute, as amended following Furman v. Georgia, 408 U.S. 238 (where this Court LAW §82 > cruel and unusual punishment -- death penalty -- held to be violative of those Amendments death > Headnote: sentences imposed under statutes that left juries with LEdHN[3A] [3A]LEdHN[3B] [3B] untrammeled discretion to impose or withhold the death penalty), retains the death penalty for murder and five A state's statutory provisions governing the imposition of other crimes. Guilt or innocence is determined in the the death penalty for the crime of murder are not first stage of a bifurcated trial; and if the trial is by jury, rendered unconstitutional as violative of the prohibition the trial judge must charge lesser included offenses against cruel and unusual punishment under the Eighth when supported by any view of the evidence. Upon a and Fourteenth Amendments merely because the state guilty verdict or plea a presentence [****3] hearing is prosecutor has discretion in selecting cases to be held where the judge or jury hears additional prosecuted as capital offenses and in plea bargaining. extenuating or mitigating evidence and evidence in [Per Stewart, J., Powell, J., Stevens, J., White, J., aggravation of punishment if made known to the Burger, Ch. J., and Rehnquist, J.] defendant before trial. At least one of 10 specified aggravating circumstances must be found to exist Syllabus beyond a reasonable doubt and designated in writing before a death sentence can be imposed. In jury cases, [****1] Petitioner was charged with committing armed the trial judge is bound by the recommended sentence. robbery and murder on the basis of evidence that he In its review of a death sentence (which is automatic), had killed and robbed two men. At the trial stage of the State Supreme Court must consider whether the Georgia's bifurcated procedure, the jury found petitioner sentence was influenced by passion, prejudice, or any guilty of two counts of armed robbery and two counts of other arbitrary factor; whether the evidence supports the murder. At the penalty stage, the judge instructed the finding of a statutory aggravating circumstance; and jury that it could recommend either a death sentence or whether the death sentence "is excessive or a life prison sentence on each count; that it was free to disproportionate to the penalty imposed in similar cases, consider mitigating or aggravating circumstances, if any, considering both the crime and the defendant." If the as presented by the parties; and that it would not be court affirms the death sentence it must include in its authorized to consider imposing the death sentence decision reference to similar cases that it has unless it first found beyond a reasonable doubt (1) that considered. Held: The judgment is affirmed. Pp. 168- the murder was committed while the offender was 207; 220-226; 227. engaged in the commission of other capital felonies, viz., the armed robberies of the victims; (2) that he 233 Ga. 117, 210 S.E. 2d 659, affirmed. committed the murder for the purpose of receiving the MR. JUSTICE STEWART, MR. JUSTICE POWELL, and victims' money and automobile; or (3) that the murder MR. JUSTICE STEVENS concluded that: was "outrageously and wantonly vile, horrible and inhuman" in that it "involved the depravity of [the] mind (1) The punishment of death for the crime of [****4] of the defendant." The jury found the first and second of murder does not, under all circumstances, violate the these aggravating circumstances and returned a Eighth and Fourteenth Amendments. Pp. 168-187. sentence of death. The Georgia Supreme Court affirmed the convictions. [****2] After reviewing the trial (a) The Eighth Amendment, which has been interpreted transcript and record and comparing the evidence and in a flexible and dynamic manner to accord with sentence in similar cases the court upheld the death evolving standards of decency, forbids the use of sentences for the murders, concluding that they had not punishment that is "excessive" either because it

Kyle Smith Page 7 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****4 involves the unnecessary and wanton infliction of pain reviews the comparability of each death sentence with or because it is grossly disproportionate to the severity the sentences imposed on similarly situated defendants of the crime. Pp. 169-173. to ensure that the sentence of death in a particular case is not disproportionate. Petitioner's contentions that the (b) Though a legislature may not impose excessive changes in Georgia's sentencing procedures have not punishment, it is not required to select the least severe removed the elements of arbitrariness and penalty possible, and a heavy burden rests upon those capriciousness condemned by Furman are without attacking its judgment. Pp. 174-176. merit. Pp. 196-207.

(c) The existence of capital punishment was accepted (a) The opportunities under the Georgia scheme for by the Framers of the Constitution, and for nearly two affording an individual defendant mercy -- whether centuries this Court has recognized that capital through the prosecutor's unfettered authority to select punishment for the crime of murder is not invalid per se. those whom he wishes to prosecute for capital offenses Pp. 176-178. and to plea bargain with them; the jury's option to convict a defendant of a lesser included offense; or the (d) Legislative measures adopted by the people's fact that the Governor or pardoning authority may chosen representatives weigh heavily in ascertaining commute a death sentence - do not render the Georgia contemporary standards of decency; and the argument statute unconstitutional. P. 199. that such standards require that the Eighth Amendment be construed as prohibiting the death penalty has been (b) Petitioner's arguments that certain statutory undercut by the fact that in the four years since [****5] aggravating [****7] circumstances are too broad or Furman, supra, was decided, Congress and at least 35 vague lack merit, since they need not be given overly States have enacted new statutes providing for the broad constructions or have been already narrowed by death penalty. Pp. 179-183. judicial construction. One such provision was held impermissibly vague by the Georgia Supreme Court. (e) Retribution and the possibility of deterrence of Petitioner's argument that the sentencing procedure capital crimes by prospective offenders are not allows for arbitrary grants of mercy reflects a impermissible considerations for a legislature to weigh misinterpretation of Furman and ignores the reviewing in determining whether the death penalty should be authority of the Georgia Supreme Court to determine imposed, and it cannot be said that Georgia's legislative whether each death sentence is proportional to other judgment that such a penalty is necessary in some sentences imposed for similar crimes. Petitioner also cases is clearly wrong. Pp. 183-187. urges that the scope of the evidence and argument that (f) Capital punishment for the crime of murder cannot be can be considered at the presentence hearing is too viewed as invariably disproportionate to the severity of wide, but it is desirable for a jury to have as much that crime. P. 187. information as possible when it makes the sentencing decision. Pp. 200-204. 2. The concerns expressed in Furman that the death penalty not be imposed arbitrarily or capriciously can be (c) The Georgia sentencing scheme also provides for met by a carefully drafted statute that ensures that the automatic sentence review by the Georgia Supreme sentencing authority is given adequate information and Court to safeguard against prejudicial or arbitrary guidance, concerns best met by a system that provides factors. In this very case the court vacated petitioner's for a bifurcated proceeding at which the sentencing death sentence for armed robbery as an excessive authority is apprised of the information relevant to the penalty. Pp. 204-206. imposition of sentence and provided with standards to MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE guide its use of that information. Pp. 188-195. and MR. JUSTICE REHNQUIST, concluded that: 3. The Georgia statutory system under which petitioner 1. Georgia's new statutory [****8] scheme, enacted to was sentenced to [****6] death is constitutional. The new procedures on their face satisfy the concerns of overcome the constitutional deficiencies found in Furman, since before the death penalty can be Furman v. Georgia, 408 U.S. 238, to exist under the imposed there must be specific jury findings as to the old system, not only guides the jury in its exercise of circumstances of the crime or the character of the discretion as to whether or not it will impose the death defendant, and the State Supreme Court thereafter penalty for first-degree murder, but also gives the Georgia Supreme Court the power and imposes the

Kyle Smith Page 8 of 41 428 U.S. 153, *153; 96 S. Ct. 2909, **2909; 49 L. Ed. 2d 859, ***859; 1976 U.S. LEXIS 82, ****8 obligation to decide whether in fact the death penalty for petitioner. was being administered for any given class of crime in a discriminatory, standardless, or rare fashion. If that G. Thomas Davis, Senior Assistant Attorney General of court properly performs the task assigned to it under the Georgia, argued the cause for respondent. With him on Georgia statutes, death sentences imposed for the brief were Arthur K. Bolton, Attorney General, discriminatory reasons or wantonly or freakishly for any Robert S. Stubbs II, Chief Deputy Attorney General, given category of crime will be set aside. Petitioner has Richard L. Chambers, Deputy Attorney General, John wholly failed to establish that the Georgia Supreme B. Ballard, Jr., Assistant Attorney General, and Bryant Court failed properly to perform its task in the instant Huff. case or that it is incapable of performing its task adequately in all cases. Thus the death penalty may be Solicitor General Bork argued the cause for the United carried out under the Georgia legislative scheme States as amicus curiae. With him on the brief was consistently with the Furman decision. Pp. 220-224. Deputy Solicitor General Randolph. William E. James, Assistant Attorney General, argued the cause for the 2. Petitioner's argument that the prosecutor's decisions State of California as [****11] amicus curiae. With him in plea bargaining or in declining to charge capital on the brief were Evelle J. Younger, Attorney General, murder are standardless and [****9] will result in the and Jack R. Winkler, Chief Assistant Attorney General. wanton or freakish imposition of the death penalty * condemned in Furman, is without merit, for the assumption cannot be made that prosecutors will be Judges: Burger, Brennan, Stewart, White, Marshall, motivated in their charging decisions by factors other Blackmun, Powell, Rehnquist, Stevens. than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts; the Opinion by: STEWART standards by which prosecutors decide whether to charge a capital felony will be the same as those by Opinion which the jury will decide the questions of guilt and sentence. Pp. 224-225. [*158] [***866] [**2918] Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE 3. Petitioner's argument that the death penalty, POWELL, and MR. JUSTICE STEVENS, announced by however imposed and for whatever crime, is cruel and MR. JUSTICE STEWART. unusual punishment is untenable for the reasons stated in MR. JUSTICE WHITE'S dissent in Roberts v. LEdHN The issue in this case is whether the imposition Louisiana, post, at 350-356. P. 226. of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth MR. JUSTICE BLACKMUN concurred in the judgment. Amendments. See Furman v. Georgia, 408 U.S., at 405-414 (BLACKMUN, J., dissenting), and id., at 375 (BURGER, I C.J., dissenting); id., at 414 (POWELL, J., dissenting); id., at 465 (REHNQUIST, J., dissenting). P. 227. The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance Judgment of the Court, and opinion of STEWART, with Georgia procedure in capital cases, the trial was in POWELL, and STEVENS, JJ., announced by two stages, a guilt stage and a sentencing stage. The STEWART, J. BURGER, C.J., and REHNQUIST, J., evidence at the guilt trial established [****12] that on filed a statement [****10] concurring in the judgment, November 21, 1973, the petitioner and a traveling post, p. 226. WHITE, J., filed an opinion concurring in companion, Floyd Allen, while hitchhiking north in the judgment, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 207. BLACKMUN, J., filed a statement concurring in the judgment, post, p. * Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and 227. BRENNAN, J., post, p. 227, and MARSHALL, J., Anthony G. Amsterdam filed a brief for the N.A.A.C.P. Legal post, p. 231, filed dissenting opinions. Defense and Educational Fund, Inc., as amicus curiae urging reversal. Counsel: G. Hughel Harrison, by appointment of the Court, 424 U.S. 941, argued the cause and filed a brief Arthur M. Michaelson filed a brief for Amnesty International as amicus curiae.

Kyle Smith Page 9 of 41 428 U.S. 153, *158; 96 S. Ct. 2909, **2918; 49 L. Ed. 2d 859, ***866; 1976 U.S. LEXIS 82, ****12

Florida were picked up by Fred Simmons and Bob had made the statements described by the detective, Moore. Their car broke down, but they continued north but denied their truth or ever having admitted to their after Simmons purchased another vehicle with some of accuracy. He indicated that he had shot Simmons and the cash he was carrying. While still in Florida, they Moore because of fear and in self-defense, testifying picked up another hitchhiker, Dennis Weaver, who rode they had attacked Allen and him, one wielding a pipe with them to Atlanta, where he was let out about 11 p.m. and the other a knife. 1 [*159] A short time later the four men interrupted their journey for a rest stop along the highway. The next The trial judge submitted the murder charges to the jury morning the bodies of Simmons and Moore were on both felony-murder and nonfelony-murder [****15] discovered in a ditch nearby. theories. He also instructed on the issue of self-defense but declined to instruct on manslaughter. He submitted On November 23, after reading about the shootings in the robbery case to the jury on both an armed-robbery an Atlanta newspaper, Weaver communicated with the theory and on the lesser included offense of robbery by Gwinnett County police and related information intimidation. The jury found the petitioner guilty of two concerning the journey with the victims, including a counts of armed robbery and two counts of murder. description of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in At the penalty stage, which took place before the same Asheville, N.C. In the search incident to the arrest a.25- jury, neither the prosecutor nor the petitioner's lawyer caliber pistol, later shown to be that used to kill offered any additional evidence. Both counsel, Simmons and Moore, was found in the petitioner's however, made lengthy arguments dealing generally pocket. After receiving the warnings required by with the propriety of capital punishment under the [***867] Miranda v. Arizona, 384 U.S. 436 (1966), circumstances and with the weight of the evidence of and [****13] signing a written waiver of his rights, the guilt. The trial judge instructed the jury that it could petitioner signed a statement in which he admitted recommend either a death sentence or a life prison shooting, then robbing Simmons and Moore. He sentence on each count. [*161] The judge further justified the slayings on grounds of self-defense. The charged the jury that in determining what sentence was next day, while being transferred to Lawrenceville, Ga., appropriate the jury was free to consider the facts and the petitioner and Allen were taken to the scene of the circumstances, if any, presented by the parties in shootings. Upon arriving there, Allen recounted the mitigation or aggravation. events leading to the slayings. His version of these Finally, the judge instructed the jury that it "would not be events was as follows: After Simmons and Moore left authorized [***868] to consider [imposing] the penalty of the car, the petitioner stated that he intended to rob death" unless it first found beyond a reasonable doubt them. The petitioner then took his pistol in hand and one of these aggravating circumstances: [****16] S positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward "One - That the offense of murder was committed while the car, the petitioner fired three shots and the two men the offender was engaged in the commission of two fell near a ditch. The petitioner, at close range, then other capital felonies, to-wit the armed robbery of [**2919] fired a shot into the head of each. He robbed [Simmons and Moore]. them of valuables and drove away with Allen. "Two -- That the offender committed the offense of A medical examiner testified that Simmons died from a murder for the purpose of receiving money and the bullet wound in the eye and that Moore died from bullet automobile described in the indictment. wounds in the cheek and in the back of the head. He further testified that both men had several bruises "Three -- The offense of murder was outrageously and [*160] and abrasions about the face and head which wantonly vile, horrible and inhuman, in that they [sic] probably were sustained either from the fall [****14] into involved the depravity of [the] mind of the defendant." the ditch or from being dragged or pushed along the Tr. 476-477.I embankment. Although Allen did not testify, a police detective recounted the substance of Allen's statements 1 about the slayings and indicated that directly after Allen On cross-examination the State introduced a letter written by had made these statements the petitioner had admitted the petitioner to Allen entitled, "[a] statement for you," with the instructions that Allen memorize and then burn it. The that Allen's account was accurate. The petitioner statement was consistent with the petitioner's testimony at testified in his own defense. He confirmed that Allen trial.

Kyle Smith Page 10 of 41 428 U.S. 153, *161; 96 S. Ct. 2909, **2919; 49 L. Ed. 2d 859, ***868; 1976 U.S. LEXIS 82, ****16

Finding the first and second of these circumstances, the for ransom or where [*163] the victim is harmed, armed jury returned verdicts of death on each count. robbery, 5 rape, treason, and aircraft hijacking. 6 Ga. Code Ann. §§ 26-1101, 26-1311, 26-1902, 26-2001, The Supreme Court of Georgia affirmed the convictions 26-2201, 26-3301 (1972). The capital defendant's guilt and the imposition of the death sentences for murder. or innocence is determined in the traditional manner, 233 Ga. 117, 210 S.E. 2d 659 (1974). After reviewing either by a trial judge or a jury, in the first stage of a the trial transcript and the record, including the bifurcated trial. evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of [****19] If trial is by jury, the trial judge is required to Georgia law, the court concluded that, considering the charge lesser included offenses when they are nature of the crime and the defendant, the sentences of supported by any view of the evidence. Sims v. State, death had not resulted from prejudice or any other 203 Ga. 668, 47 S.E. 2d 862 (1948). See Linder v. arbitrary factor and were not excessive or State, 132 Ga. App. 624, 625, 208 S.E. 2d 630, 631 disproportionate to the penalty applied in similar cases. (1974). After a verdict, finding, or plea of guilty to a [****17] 2 The [**2920] death [*162] sentences imposed capital crime, a presentence hearing is conducted for armed robbery, however, were vacated on the before whoever made the determination of guilt. The grounds that the death penalty had rarely been imposed sentencing procedures are essentially the same in both in Georgia for that offense and that the jury improperly bench and jury trials. At the hearing: S considered the murders as aggravating circumstances for the robberies after having considered the armed "[T]he judge [or jury] shall hear additional evidence in robberies as aggravating circumstances for the extenuation, mitigation, and aggravation of punishment, murders. Id., at 127, 210 S.E. 2d, at 667. including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the We granted the petitioner's application for a writ of defendant, or the absence of any prior conviction and certiorari limited to his challenge to the imposition of the pleas: Provided, however, that [*164] only such death sentences in this case as "cruel and unusual" evidence in aggravation as the State has made known punishment in violation of the Eighth and the Fourteenth to the defendant prior to his trial shall be admissible. Amendments. 423 U.S. 1082 (1976).

II creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no Before considering the issues presented it is necessary considerable provocation appears, and where all the circumstances of the killing show an abandoned and to understand the Georgia statutory scheme for the malignant heart. imposition of the death penalty. 3 The Georgia statute, [****18] as amended after our decision in Furman v. "(b) A person also commits the crime of murder when in the Georgia, 408 U.S. 238 (1972), retains the death penalty commission of a felony he causes the death of another human being, irrespective of malice. for six categories of crime: murder, 4 [***869] kidnaping "(c) A person convicted of murder shall be punished by death or by imprisonment for life."

2 The court further held, in part, that the trial court did not err in 5 Section 26-1902 (1972) provides: refusing to instruct the jury with respect to voluntary manslaughter since there was no evidence to support that "A person commits armed robbery when, with intent to commit verdict. theft, he takes property of another from the person or the immediate presence of another by use of an offensive 3 Subsequent to the trial in this case limited portions of the weapon. The offense robbery by intimidation shall be a lesser Georgia statute were amended. None of these amendments included offense in the offense of armed robbery. A person changed significantly the substance of the statutory scheme. convicted of armed robbery shall be punished by death or All references to the statute in this opinion are to the current imprisonment for life, or by imprisonment for not less than one version. nor more than 20 years." 4 Georgia Code Ann. § 26-1101 (1972) provides: 6 These capital felonies currently are defined as they were "(a) A person commits murder when he unlawfully and with when Furman was decided. The 1973 amendments to the malice aforethought, either express or implied, causes the Georgia statute, however, narrowed the class of crimes death of another human being. Express malice is that potentially punishable by death by eliminating capital perjury. deliberate intention unlawfully to take away the life of a fellow Compare § 26-2401 (Supp. 1975) with § 26-2401 (1972).

Kyle Smith Page 11 of 41 428 U.S. 153, *164; 96 S. Ct. 2909, **2920; 49 L. Ed. 2d 859, ***869; 1976 U.S. LEXIS 82, ****19

The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting [**2921] conviction for a capital felony, or the offense of murder was attorney… regarding the punishment to be imposed." § committed by a person who has a substantial history of 27-2503 (Supp. 1975).I serious assaultive criminal convictions.

The defendant is accorded substantial latitude "(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in as [****20] to the types of evidence that he may the commission of another capital felony, or aggravated introduce. See Brown v. State, 235 Ga. 644, 647-650, battery, or the offense of murder was committed while the 7 220 S.E. 2d 922, 925-926 (1975). Evidence offender was engaged in the commission of burglary or arson considered during the guilt stage may be considered in the first degree. during the sentencing stage without being resubmitted. "(3) The offender by his act of murder, armed robbery, or Eberheart v. State, 232 Ga. 247, 253, 206 S.E. 2d 12, kidnapping knowingly created a great risk of death to more 17 (1974). 8 than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more In the assessment of the appropriate sentence to be than one person. imposed the judge is also required to consider or to include in his instructions to the jury "any mitigating "(4) The offender committed the offense of murder for himself circumstances [****21] or aggravating circumstances or another, for the purpose of receiving money or any other otherwise authorized by law and any of [10] statutory thing of monetary value. aggravating circumstances [***870] which may be "(5) The murder of a judicial officer, former judicial officer, supported by the evidence…." § 27-2534.1(b) (Supp. district attorney or solicitor or former district attorney or 1975). The scope of the nonstatutory aggravating or solicitor during or because of the exercise of his official duty. mitigating circumstances is not delineated in the statute. "(6) The offender caused or directed another to commit murder Before a convicted defendant may be sentenced to or committed murder as an agent or employee of another death, however, except in cases of treason or aircraft person. hijacking, the jury, or the trial judge in cases tried "(7) The offense of murder, rape, armed robbery, or without a jury, must find beyond a reasonable doubt one kidnapping was outrageously or wantonly vile, horrible or [*165] of the 10 aggravating circumstances specified in inhuman in that it involved torture, depravity of mind, or an 9 the statute. The sentence [**2922] of death may be aggravated battery to the victim. "(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the 7 It is not clear whether the 1974 amendments to the Georgia performance of his official duties. statute were intended to broaden the types of evidence admissible at the presentence hearing. Compare § 27- "(9) The offense of murder was committed by a person in, or 2503(a) (Supp. 1975) with § 27-2534 (1972) (deletion of who has escaped from, the lawful custody of a peace officer or limitation "subject to the laws of evidence"). place of lawful confinement. "(10) The murder was committed for the purpose of avoiding, 8 Essentially the same procedures are followed in the case of a interfering with, or preventing a lawful arrest or custody in a guilty plea. The judge considers the factual basis of the plea, place of lawful confinement, of himself or another. as well as evidence in aggravation and mitigation. See Mitchell v. State, 234 Ga. 160, 214 S.E. 2d 900 (1975). "(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and 9 The statute provides in part: in writing to the jury for its deliberation. The jury, if its verdict "(a) The death penalty may be imposed for the offenses of be a recommendation of death, shall designate in writing, aircraft hijacking or treason, in any case. signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a "(b) In all cases of other offenses for which the death penalty reasonable doubt. In non-jury cases the judge shall make such may be authorized, the judge shall consider, or he shall designation. Except in cases of treason or aircraft hijacking, include in his instructions to the jury for it to consider, any unless at least one of the statutory aggravating circumstances mitigating circumstances or aggravating circumstances enumerated in section 27-2534.1(b) is so found, the death otherwise authorized by law and any of the following statutory penalty shall not be imposed." § 27-2534.1 (Supp. 1975). aggravating circumstances which may be supported by the evidence: The Supreme Court of Georgia, in Arnold v. State, 236 Ga. "(1) The offense of murder, rape, armed robbery, or 534, 540, 224 S.E. 2d 386, 391 (1976), recently held kidnapping was committed by a person with a prior record of unconstitutional the portion of the first circumstance

Kyle Smith Page 12 of 41 428 U.S. 153, *165; 96 S. Ct. 2909, **2922; 49 L. Ed. 2d 859, ***870; 1976 U.S. LEXIS 82, ****21 imposed only if the jury (or judge) finds one of the information about the defendant, the crime, and the statutory aggravating circumstances and then elects to circumstances of the trial. It requires the trial judge to [*166] impose that sentence. § 26-3102 (Supp. 1975). characterize the trial in several ways designed to test for If the verdict is death, the jury or judge must specify the arbitrariness and disproportionality of sentence. aggravating circumstance(s) found. § 27-2534.1(c) Included in the report are responses to detailed (Supp. 1975). In jury cases, the trial judge is bound by questions concerning the quality of the defendant's the jury's recommended sentence. §§ 26-3102, 27-2514 representation, whether race played a role in the trial, (Supp. 1975). and, whether, in the trial court's judgment, there was any doubt about [*168] the defendant's guilt or the [****22] In addition to the conventional appellate appropriateness of the sentence. A copy of the report is process available in all criminal cases, provision is served upon defense counsel. Under its special review made for special [***871] expedited direct review by the authority, the court may either affirm the death sentence Supreme Court of Georgia of the appropriateness of or remand the case for resentencing. In cases in which imposing the sentence of death in the particular case. the death sentence is affirmed there remains the The court is directed to consider "the punishment as possibility of executive clemency. 11 well as any errors enumerated by way of appeal," and to determine: S [****24] III

"(1) Whether the sentence of death was imposed [*167] We address initially the basic contention that the under the influence of passion, prejudice, or any other punishment of death for the crime of murder is, under all arbitrary factor, and circumstances, "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. "(2) Whether, in cases other than treason or aircraft In Part IV of this opinion, we will consider the sentence hijacking, the evidence supports the jury's or judge's of death imposed under the Georgia statutes at issue in finding of a statutory aggravating circumstance as this case. enumerated in section 27.2534.1 (b), and LEdHN The Court on a number of occasions has both "(3) Whether the sentence of death is excessive or assumed and asserted the constitutionality of capital disproportionate to the penalty imposed in similar cases, punishment. In several cases that assumption provided considering both the crime and the defendant." § 27- a necessary foundation for the decision, as the Court 2537 (Supp. 1975).I [***872] was asked to decide whether a particular If the court affirms a death sentence, it is required to method of carrying out a capital sentence [**2923] include in its decision reference to similar cases that it would be allowed to stand under the Eighth 12 has taken into consideration. § 27-2537 (e) (Supp. Amendment. But until Furman v. Georgia, 408 U.S. 1975). 10 238 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, [****23] A transcript and complete record of the trial, as regardless of the enormity of the offense or the well as a separate report by the trial judge, are procedure followed in imposing the sentence, is cruel transmitted to the court for its use in reviewing the and [*169] unusual punishment in violation of the sentence. § 27-2537 (a) (Supp. 1975). The report is in Constitution. Although this issue was presented and the form of a 6 1/2-page questionnaire, designed to elicit

11 See Ga. Const., Art. 5, § 1, [*] 12, Ga. Code Ann. § 2-3011 encompassing persons who have a "substantial history of (1973); Ga. Code Ann. §§ 77-501, 77-511, 77-513 (1973 and serious assaultive criminal convictions" because it did not set Supp. 1975) (Board of Pardons and Paroles is authorized to "sufficiently 'clear and objective standards.'" commute sentence of death except in cases where Governor 10 The statute requires that the Supreme Court of Georgia refuses to suspend that sentence). obtain and preserve the records of all capital felony cases in which the death penalty was imposed after January 1, 1970, 12 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 or such earlier date that the court considers appropriate. § 27- (1947); In re Kemmler, 136 U.S. 436, 447 (1890); Wilkerson 2537 (f) (Supp. 1975). To aid the court in its disposition of v. Utah, 99 U.S. 130, 134-135 (1879). See also McGautha v. these cases the statute further provides for the appointment of California, 402 U.S. 183 (1971); Witherspoon v. Illinois, 391 a special assistant and authorizes the employment of U.S. 510 (1968); Trop v. Dulles, 356 U.S. 86, 100 (1958) additional staff members. §§ 27-2537 (f)-(h) (Supp. 1975). (plurality opinion).

Kyle Smith Page 13 of 41 428 U.S. 153, *169; 96 S. Ct. 2909, **2923; 49 L. Ed. 2d 859, ***872; 1976 U.S. LEXIS 82, ****24 addressed in Furman, it was not resolved by the Court. [****27] In [***873] the earliest cases raising Eighth Four Justices would have held that capital punishment Amendment claims, the Court focused on particular is not unconstitutional [****25] per se; 13 two Justices methods of execution to determine whether they were would have reached the opposite conclusion; 14 and too cruel to pass constitutional muster. The three Justices, while agreeing that the statutes then constitutionality of the sentence of death itself was not before the Court were invalid as applied, left open the at issue, and the criterion used to evaluate the [**2924] question whether such punishment may ever be mode of execution was its similarity to "torture" and imposed. 15 We now hold that HN1 the punishment of other "barbarous" methods. See Wilkerson v. Utah, 99 death does not invariably violate the Constitution. U.S. 130, 136 (1879) ("[I]t is safe to affirm that punishments of torture… and all others in the same line [****26] A of unnecessary cruelty, are forbidden by that amendment…"); In re Kemmler, 136 U.S. 436, 447 The history of the prohibition of "cruel and unusual" (1890) ("Punishments are cruel when they involve 16 punishment already has been reviewed at length. torture or a lingering death…"). See also Louisiana ex The phrase first appeared in the English Bill of Rights of rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) 1689, which was drafted by Parliament at the accession (second attempt at electrocution found not to violate of William and Mary. See Granucci, "Nor Cruel and [*171] Eighth Amendment, since failure of initial Unusual Punishments Inflicted:" The Original Meaning, execution attempt was "an unforeseeable accident" and 57 Calif. L. Rev. 839, 852-853 (1969). The English "[t]here [was] no purpose to inflict unnecessary pain nor version appears to have been directed against any unnecessary pain involved in the proposed punishments unauthorized by statute and beyond the execution"). jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. But the Court has not confined the prohibition embodied The [*170] American draftsmen, who adopted the in the Eighth Amendment to "barbarous" methods that English phrasing in drafting the Eighth Amendment, were generally outlawed [****28] in the 18th century. were primarily concerned, however, with proscribing Instead, the Amendment has been interpreted in a "tortures" and other "barbarous" methods of flexible and dynamic manner. The Court early punishment." Id., at 842. 17 recognized that "a principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U.S. 349, 373 13 408 U.S., at 375 (BURGER, C.J., dissenting); id., at 405 (1910). Thus the Clause forbidding "cruel and unusual" (BLACKMUN, J., dissenting); id., at 414 (POWELL, J., punishments "is not fastened to the obsolete but may dissenting); id., at 465 (REHNQUIST, J., dissenting). acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 378. See also Furman v. 14 Id., at 257 (BRENNAN, J., concurring); id., at 314 Georgia, 408 U.S., at 429-430 (POWELL, J., (MARSHALL, J., concurring). dissenting); Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion). 15 Id., at 240 (Douglas, J., concurring); id., at 306 (STEWART, J., concurring); id., at 310 (WHITE, J., In Weems the Court addressed the constitutionality of concurring). the Philippine punishment of cadena temporal for the Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed admit of tortures, or cruel and barbarous punishment. But as that position taken by those Members who concurred in the Congress may introduce the practice of the civil law, in judgments on the narrowest grounds - MR. JUSTICE preference to that of the common law. They may introduce STEWART and MR. JUSTICE WHITE. See n. 36, infra. the practice of France, Spain, and Germany - of torturing, to extort a confession of the crime." 3 J. Elliot, Debates 447-448 16 408 U.S., at 316-328 (MARSHALL, J., concurring). (1863). 17 This conclusion derives primarily from statements made A similar objection was made in the Massachusetts during the debates in the various state conventions called to convention: "They are nowhere restrained from inventing the ratify the Federal Constitution. For example, Virginia delegate most cruel and unheard-of punishments and annexing them to Patrick Henry objected vehemently to the lack of a provision crimes; and there is no constitutional check on them, but that banning "cruel and unusual punishments": racks and gibbets may be amongst the most mild instruments "What has distinguished our ancestors? -- That they would not of their discipline." 2 Elliot, supra, at 111.

Kyle Smith Page 14 of 41 428 U.S. 153, *171; 96 S. Ct. 2909, **2924; 49 L. Ed. 2d 859, ***873; 1976 U.S. LEXIS 82, ****28 crime of falsifying an official document. That employed to select convicted defendants for the punishment included imprisonment for at least 12 years sentence of death. and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime It is clear from the foregoing precedents that HN2 the surveillance. Although the Court acknowledged the [*173] Eighth Amendment has not been regarded as a possibility that "the cruelty of pain" may be present in static concept. As Mr. Chief Justice Warren said, in an the challenged punishment, 217 U.S., at 366, it did not often-quoted phrase, "[t]he Amendment must draw its rely on that factor, for it rejected the proposition [****29] meaning from the evolving standards of decency that that the Eighth Amendment reaches only punishments mark the progress of a maturing society." Trop v. that are "inhuman and barbarous, torture and the like." Dulles, supra, at 101. See also [****31] Jackson v. Id., at 368. Rather, the Court focused on the lack of Bishop, 404 F. 2d 571, 579 (CA8 1968). Cf. Robinson proportion between the crime and the offense: S v. California, supra, at 666. Thus, an assessment of contemporary values concerning the infliction of a "Such penalties for such offenses amaze those who challenged sanction is relevant to the application of the have formed their conception of the relation of a state Eighth Amendment. As we develop below more fully, [***874] to even its offending citizens from the practice see infra, at 175-176, this assessment does not call for [*172] of the American commonwealths, and believe a subjective judgment. It requires, rather, that we look that it is a precept of justice that punishment for crime to objective indicia that reflect the public attitude toward should be graduated and proportioned to offense." Id., a given sanction. at 366-367. 18I But our cases also make clear that HN3 public Later, in Trop v. Dulles, supra, the Court reviewed the perceptions of standards of decency with respect to constitutionality of the punishment of denationalization criminal sanctions are not conclusive. A penalty also imposed upon a soldier who escaped from an Army must accord with "the dignity of man," which is the stockade and became a deserter for one day. Although "basic concept underlying the Eighth Amendment." Trop the concept of proportionality was not the basis of the v. Dulles, supra, at 100 (plurality opinion). This means, holding, the plurality observed in dicta that "[fines], at least, that the punishment not be "excessive." When imprisonment and even execution may be imposed a form of punishment in the abstract (in this case, depending upon the enormity of the crime." 356 U.S., at whether capital punishment may ever be imposed as a 100. sanction for murder) rather than in [***875] the particular (the propriety of death as a penalty to be [****30] The substantive limits imposed by the Eighth applied to a specific defendant for a specific crime) is Amendment on what can be made criminal and under consideration, the inquiry into "excessiveness" punished were discussed in Robinson v. California, has two aspects. [****32] First, the punishment must not 370 U.S. 660 (1962). The Court found unconstitutional a involve the unnecessary and wanton infliction of pain. state statute that made the status of being addicted to a Furman v. Georgia, supra, at 392-393 (BURGER, C.J., narcotic drug a criminal offense. It held, in effect, that it dissenting). See Wilkerson v. Utah, 99 U.S., at 136; is "cruel and unusual" to impose any punishment at all Weems v. United States, supra, at 381. Second, the for the mere status of addiction. The cruelty in the punishment must not be grossly out of proportion to the abstract of the actual sentence imposed was irrelevant: severity of the crime. Trop v. Dulles, supra, at 100 "Even one day in prison would [**2925] be a cruel and (plurality opinion) (dictum); Weems v. United States, unusual punishment for the 'crime' of having a common supra, at 367. cold." Id., at 667. Most recently, in Furman v. Georgia, supra, three Justices in separate concurring opinions [*174] B found the Eighth Amendment applicable to procedures Of course, HN4 the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not 18 The Court remarked on the fact that the law under review mean that judges have no role to play, for the Eighth "has come to us from a government of a different form and Amendment is a restraint upon the exercise of genius from ours," but it also noted that the punishments it legislative power. S inflicted "would have those bad attributes even if they were found in a Federal enactment and not taken from an alien "Judicial review, by definition, often involves a conflict source." 217 U.S., at 377.

Kyle Smith Page 15 of 41 428 U.S. 153, *174; 96 S. Ct. 2909, **2925; 49 L. Ed. 2d 859, ***875; 1976 U.S. LEXIS 82, ****32 between judicial and legislative judgment as to what the [****35] Therefore, HN6 in assessing a punishment Constitution means or requires. In this respect, Eighth selected by a democratically elected legislature against Amendment cases come to us in no different posture. It the constitutional measure, we presume its validity. We seems conceded by all that the Amendment imposes may not require the legislature to select the least severe some obligations on the judiciary to judge the penalty possible so long as the penalty selected is not constitutionality of punishment and that there are cruelly inhumane or disproportionate to the crime punishments that the Amendment would bar whether involved. And a heavy burden rests on those who legislatively approved [****33] or not." Furman v. would attack the judgment of the representatives of the Georgia, 408 U.S., at 313-314 (WHITE, J., concurring).I people.

See also id., at 433 (POWELL, J., dissenting). 19 This is true in part because the constitutional test is intertwined with an assessment of contemporary [****34] But, [**2926] HN5 while we have an obligation standards and the legislative judgment weighs heavily in to insure that constitutional [*175] bounds are not ascertaining such standards. "[I]n a democratic society overreached, we may not act as judges as we might as legislatures, not courts, are constituted to respond to the legislators. S will and consequently the moral values of the people." [*176] Furman v. Georgia, supra, at 383 (BURGER, "Courts are not representative bodies. They are not C.J., dissenting). The deference we owe to the designed to be a good reflex of a democratic society. decisions of the state legislatures under our federal Their judgment is best informed, and therefore most system, id., at 465-470 (REHNQUIST, J., dissenting), is dependable, within narrow limits. Their essential quality enhanced where the specification of punishments is is detachment, founded on independence. History concerned, for "these are peculiarly questions of teaches that the independence of the judiciary is legislative policy." Gore v. United States, 357 U.S. 386, jeopardized when courts become embroiled in the 393 (1958). Cf. Robinson v. California, [****36] 370 passions of the day and assume primary responsibility U.S., at 664-665; Trop v. Dulles, 356 U.S., at 103 in choosing between competing political, economic and (plurality opinion); In re Kemmler, 136 U.S., at 447. social pressures." Dennis v. United States, 341 U.S. Caution is necessary lest this Court become, "under the 494, 525 (1951) (Frankfurter, [***876] J., concurring in aegis of the Cruel and Unusual Punishment Clause, the affirmance of judgment). 20I ultimate arbiter of the standards of criminal responsibility… throughout the country." Powell v. Texas, 392 U.S. 514, 533 (1968) (plurality opinion). A decision that a given punishment is impermissible under 19 Although legislative measures adopted by the people's chosen representatives provide one important means of the Eighth Amendment cannot be reversed short of a ascertaining contemporary values, it is evident that legislative constitutional amendment. The ability of the people to judgments alone cannot be determinative of Eighth express their preference through the normal democratic Amendment standards since that Amendment was intended processes, as well as through ballot referenda, is shut to safeguard individuals from the abuse of legislative power. off. Revisions cannot be made in the light of further See Weems v. United States, 217 U.S. 349, 371-373 (1910); experience. See Furman v. Georgia, supra, at 461-462 Furman v. Georgia, 408 U.S., at 258-269 (BRENNAN, J., (POWELL, J., dissenting). concurring). Robinson v. California, 370 U.S. 660 (1962), illustrates the proposition that penal laws enacted by state C legislatures may violate the Eighth Amendment because "in the light of contemporary human knowledge" they "would In the discussion to this point we have sought to identify doubtless be universally thought to be an infliction of cruel and the principles and considerations that guide a court in unusual punishment." Id., at 666. At the time of Robinson addressing an Eighth Amendment claim. We now nine States in addition to California had criminal laws that consider specifically whether the sentence of death for punished addiction similar to the law declared unconstitutional the crime of murder is a per se violation of the Eighth in Robinson. See Brief for Appellant in Robinson v. and Fourteenth Amendments to the Constitution. We California, O.T. 1961, No. 554, p. 15. note [**2927] first that history and precedent [****37] 20 See also Furman v. Georgia, supra, at 411 (BLACKMUN, J., dissenting): for such action, to guide our judicial decision in cases such as "We should not allow our personal preferences as to the these. The temptations to cross that policy line are very wisdom of legislative and congressional action, or our distaste great."

Kyle Smith Page 16 of 41 428 U.S. 153, *176; 96 S. Ct. 2909, **2927; 49 L. Ed. 2d 859, ***876; 1976 U.S. LEXIS 82, ****37 strongly support a negative answer to this question. included in that category, within the meaning of the eighth amendment."I The imposition of the death penalty for the crime of murder has a long history of acceptance both in the Rejecting the contention that death by electrocution was United States and in England. The common-law rule "cruel and unusual," the Court in In re Kemmler, supra, [*177] imposed a mandatory death sentence on all at 447, reiterated: S convicted [***877] murderers. McGautha v. California, 402 U.S. 183, 197-198 (1971). And the penalty "[T]he punishment of death is not cruel, within the continued to be used into the 20th century by most meaning of that word as used in the Constitution. It American States, although the breadth of the common- implies there something inhuman and barbarous, law rule was diminished, initially by narrowing the class something more than the mere extinguishment of life."I of murders to be punished by death and subsequently by widespread adoption of laws expressly granting Again, in Louisiana ex rel. Francis v. Resweber, 329 juries the discretion to recommend mercy. Id., at 199- U.S., at 464, the Court remarked: "The cruelty against 200. See Woodson v. North Carolina, post, at 289-292. which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the HN7 It is apparent from the text of the Constitution itself necessary suffering involved in any method employed to that the existence of capital punishment was accepted extinguish life humanely." And in Trop v. Dulles, 356 by the Framers. At the time the Eighth Amendment was U.S., at 99, Mr. Chief Justice Warren, for himself and ratified, capital punishment was a common sanction in three other Justices, wrote: S every State. Indeed, the First Congress of the United "Whatever the arguments may be against capital States enacted legislation providing death as the punishment, both [***878] on moral grounds and in penalty for specified crimes. C. 9, 1 Stat. 112 (1790). terms of accomplishing the purposes of punishment… The Fifth Amendment, adopted at the same time as the the death penalty has been employed throughout our Eighth, contemplated [****38] the continued existence of history, and, in a day when it is still widely accepted, it the capital sanction by imposing certain limits on the cannot be said to violate the constitutional concept of prosecution of capital cases: S [****40] cruelty."I "No person shall be held to answer for a capital, or [*179] [**2928] Four years ago, the petitioners in otherwise infamous crime, unless on a presentment or Furman and its companion cases predicated their indictment of a Grand Jury…; nor shall any person be argument primarily upon the asserted proposition that subject for the same offense to be twice put in jeopardy standards of decency had evolved to the point where of life or limb;… nor be deprived of life, liberty, or capital punishment no longer could be tolerated. The property, without due process of law…."I petitioners in those cases said, in effect, that the And the Fourteenth Amendment, adopted over three- evolutionary process had come to an end, and that quarters of a century later, similarly contemplates the standards of decency required that the Eighth existence of the capital sanction in providing that no Amendment be construed finally as prohibiting capital State shall deprive any person of "life, liberty, or punishment for any crime regardless of its depravity and property" without due process of law. impact on society. This view was accepted by two Justices. 21 Three other Justices were unwilling to go For nearly two centuries, this Court, repeatedly and so far; focusing on the procedures by which convicted [*178] often expressly, has recognized that capital defendants were selected for the death penalty rather punishment is not invalid per se. In Wilkerson v. Utah, than on the actual punishment inflicted, they joined in 99 U.S., at 134-135, where the Court found no the conclusion that the statutes before the Court were constitutional violation in inflicting death by public constitutionally invalid. 22 shooting, it said: S

"Cruel and unusual punishments are forbidden by the 21 See concurring opinions of MR. JUSTICE BRENNAN and Constitution, but the authorities referred to are quite MR. JUSTICE MARSHALL, 408 U.S., at 257 and 314. sufficient to show that the punishment of shooting as a mode of executing the death penalty for the 22 See concurring opinions of Mr. Justice Douglas, MR. crime [****39] of murder in the first degree is not JUSTICE STEWART, and MR. JUSTICE WHITE, id., at 240, 306, and 310.

Kyle Smith Page 17 of 41 428 U.S. 153, *179; 96 S. Ct. 2909, **2928; 49 L. Ed. 2d 859, ***878; 1976 U.S. LEXIS 82, ****40

[****41] The petitioners in the capital cases before the be weighed and the procedures to be followed in Court today renew the "standards of decency" deciding when to impose a capital sentence, or (ii) argument, but developments during the four years since [****42] by making the death penalty mandatory for Furman have undercut substantially the assumptions specified crimes. But all of the post-Furman statutes upon which their argument rested. Despite the make clear that capital punishment [*181] itself has not continuing debate, dating back to the 19th century, over been rejected by the elected representatives of the the morality and utility of capital punishment, it is now people. evident that a large proportion of American society continues to regard it as an appropriate and necessary [****43] In the only statewide referendum occurring criminal sanction. since Furman and brought to our attention, the people of California adopted a constitutional amendment that The most marked indication of society's endorsement of authorized capital punishment, in effect negating a prior the death penalty for murder is the legislative response ruling by the Supreme Court of California in People v. 23 to Furman. The legislatures of at least 35 States Anderson, 6 Cal. 3d 628, [**2929] 493 P. 2d 880, cert. have enacted new statutes that provide for the [*180] denied, 406 U.S. 958 (1972), that the death penalty death penalty for at least some crimes that result in the violated the California Constitution. 25 death of another person. And the Congress of the United [***879] States, in 1974, enacted a statute [****44] The jury also is a significant and reliable providing the death penalty for aircraft piracy that results objective index of contemporary values because it is so in death. 24 These recently adopted statutes have directly involved. See Furman v. Georgia, 408 U.S., at attempted to address the concerns expressed by the 439-440 (POWELL, J., dissenting). See generally Court in Furman primarily (i) by specifying the factors to Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1 (1966). The Court has said that "one of the most important functions any jury can perform in making… a 23 Ala. H.B. 212, §§ 2-4, 6-7 (1975); Ariz. Rev. Stat. Ann. §§ selection [between life imprisonment and death for a 13-452 to 13-454 (Supp. 1973); Ark. Stat. Ann. § 41-4706 defendant convicted in a capital case] is to maintain a (Supp. 1975); Cal. Penal Code §§ 190.1, 209, 219 (Supp. link between contemporary community values and the 1976); Colo. Laws 1974, c. 52, § 4; Conn. Gen. Stat. Rev. §§ penal system." Witherspoon v. Illinois, 391 U.S. 510, 53a-25, 53a-35(b), 53a-46a, 53a-54b (1975); Del. Code Ann. 519 n. 15 (1968). It may be true that evolving standards tit. 11, § 4209 (Supp. 1975); Fla. Stat. Ann. §§ 782.04, have influenced juries in [*182] recent decades to be 921.141 (Supp. 1975-1976); Ga. Code Ann. §§ 26-3102, 27- more discriminating in imposing the sentence of death. 2528, 27-2534.1, 27-2537 (Supp. 1975); Idaho Code § 18- 26 But the relative infrequency of jury verdicts imposing 4004 (Supp. 1975); Ill. Ann. Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A (Supp. 1976-1977); Ind. Stat. Ann. § 35-13-4-1 (1975); Ky. Rev. Stat. Ann. § 507.020 (1975); La. Rev. Stat. Ann. § 14:30 (Supp. 1976); Md. Ann. Code, art. 27, § 413 25 (Supp. 1975); Miss. Code Ann. §§ 97-3-19, 97-3-21, 97-25- In 1968, the people of Massachusetts were asked "Shall the 55, 99-17-20 (Supp. 1975); Mo. Ann. Stat. § 559.009, commonwealth… retain the death penalty for crime?" A 559.005 (Supp. 1976); Mont. Rev. Codes Ann. § 94-5-105 substantial majority of the ballots cast answered "Yes." Of (Spec. Crim. Code Supp. 1976); Neb. Rev. Stat. §§ 28-401, 2,348,005 ballots cast, 1,159,348 voted "Yes," 730,649 voted 29-2521 to 29-2523 (1975); Nev. Rev. Stat. § 200.030 (1973); "No," and 458,008 were blank. See Commonwealth v. N.H. Rev. Stat. Ann. § 630:1 (1974); N.M. Stat. Ann. § 40A- O'Neal, -- Mass. -- , -- , and n. 1, 339 N.E. 2d 676, 708, and n. 29-2 (Supp. 1975); N.Y. Penal Law § 60.06 (1975); N.C. Gen. 1 (1975) (Reardon, J., dissenting). A December 1972 Gallup Stat. § 14-17 (Supp. 1975); Ohio Rev. Code Ann. §§ poll indicated that 57% of the people favored the death 2929.02-2929.04 (1975); Okla. Stat. Ann. tit. 21, § 701.1-701.3 penalty, while a June 1973 Harris survey showed support of (Supp. 1975-1976); Pa. Laws 1974, Act. No. 46; R.I. Gen. 59%. Vidmar & Ellsworth, Public Opinion and the Death Laws Ann. § 11-23-2 (Supp. 1975); S.C. Code Ann. § 16-52 Penalty, 26 Stan. L. Rev. 1245, 1249 n. 22 (1974). In a (Supp. 1975); Tenn. Code Ann. §§ 39-2402, 39-2406 (1975); December 1970 referendum, the voters of Illinois also rejected Tex. Penal Code Ann. § 19.03(a) (1974); Utah Code Ann. §§ the abolition of capital punishment by 1,218,791 votes to 76-3-206, 76-3-207, 76-5-202 (Supp. 1975); Va. Code Ann. 676,302 votes. Report of the Governor's Study Commission §§ 18.2-10, 18.2-31 (1976); Wash. Rev. Code §§ 9A.32.045, on Capital Punishment 43 (Pa. 1973). 9A.-32.046 (Supp. 1975); Wyo. Stat. Ann. § 6-54 (Supp. 26 The number of prisoners who received death sentences in 1975). the years from 1961 to 1972 varied from a high of 140 in 1961 24 Antihijacking Act of 1974, 49 U.S.C. §§ 1472(i), (n) (1970 to a low of 75 in 1972, with wide fluctuations in the intervening ed., Supp. IV). years: 103 in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in

Kyle Smith Page 18 of 41 428 U.S. 153, *182; 96 S. Ct. 2909, **2929; 49 L. Ed. 2d 859, ***879; 1976 U.S. LEXIS 82, ****44 the death sentence does not indicate rejection of capital 29 This function may be unappealing to many, but it is punishment per se. Rather, the reluctance of juries in essential in an ordered society that asks its citizens to many cases to impose the sentence may well reflect the rely on legal processes rather than self-help to vindicate humane feeling that this most irrevocable of sanctions their wrongs. S should be reserved for a small number of extreme cases. See Furman v. Georgia, supra, at 388 "The instinct for retribution is part of the nature of man, (BURGER, [***880] C.J., dissenting). Indeed, [****45] and channeling that instinct in the administration of the actions of juries in many States since Furman are criminal justice serves an important purpose in fully compatible with the legislative judgments, reflected promoting the stability of a society governed by law. in the new statutes, as to the continued utility and When people begin to believe that organized society is necessity of capital punishment in appropriate cases. At unwilling or unable to impose upon criminal offenders the close of 1974 at least 254 persons had been the punishment they 'deserve,' then there are sown the sentenced to death since Furman, 27 and by the end of seeds of anarchy -- of self-help, vigilante justice, and March 1976, more than 460 persons were subject to lynch law." Furman v. Georgia, supra, at 308 death sentences. (STEWART, J., concurring).I

[****46] As we have seen, however, HN8 the Eighth Retribution is no longer the dominant objective of the Amendment demands more than that a challenged criminal law," Williams v. New York, 337 U.S. 241, 248 punishment be acceptable to contemporary society. (1949), but neither is it a forbidden objective nor one The Court also must ask whether it comports with the inconsistent with our respect for the dignity of men. basic concept of human dignity at the core of the [*184] Furman v. Georgia, 408 U.S., at 394-395 Amendment. Trop v. Dulles, 356 U.S., at 100 plurality (BURGER, C.J., dissenting); id., at 452-454 (POWELL, opinion. Although we cannot "invalidate a category of J., dissenting); Powell v. [****48] Texas, 392 U.S., at penalties because we deem less severe penalties 531, 535-536 plurality opinion. Indeed, the decision that adequate to serve the ends of [*183] penology," capital punishment may be the appropriate sanction in Furman v. Georgia, supra, at 451 (POWELL, J., extreme cases is an expression of the community's dissenting), the sanction imposed cannot be so totally belief [***881] that certain crimes are themselves so without penological justification that it results in the grievous an affront to humanity that the only adequate gratuitous infliction of suffering. Cf. Wilkerson v. Utah, response may be the penalty of death. 30 99 U.S., at 135-136; In re Kemmler, 136 U.S., at 447.

HN9 The death penalty is said to serve two principal 29 See H. Packer, limits of the Criminal Sanction 43-44 (1968). social purposes: retribution [**2930] and deterrence of capital crimes by prospective offenders. 28 30 Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke to this effect before the British Royal [****47] In part, capital punishment is an expression of Commission on Capital Punishment: society's moral outrage at particularly offensive conduct. "Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect 1966; 85 in 1967; 102 in 1968; 97 in 1969; 127 in 1970; and for law, it is essential that the punishment inflicted for grave 104 in 1971. Department of Justice, National Prisoner crimes should adequately reflect the revulsion felt by the great Statistics Bulletin, Capital Punishment 1971-1972, p. 20 (Dec. majority of citizens for them. It is a mistake to consider the 1974). It has been estimated that before Furman less than objects of punishment as being deterrent or reformative or 20% of those convicted of murder were sentenced to death in preventive and nothing else…. The truth is that some crimes those States that authorized capital punishment. See are so outrageous that society insists on adequate Woodson v. North Carolina, post, at 295-296, n. 31. punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not." Royal Commission on 27 Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. Capital Punishment 1974, pp. 1, 26-27 (Nov. 1975). 207 (1950). 28 Another purpose that has been discussed is the A contemporary writer has noted more recently that opposition incapacitation of dangerous criminals and the consequent to capital punishment "has much more appeal when the prevention of crimes that they may otherwise commit in the discussion is merely academic than when the community is future. See People v. Anderson, 6 Cal. 3d 628, 651, 493 P. confronted with a crime, or a series of crimes, so gross, so 2d 880, 896, cert. denied, 406 U.S. 958 (1972); heinous, so cold-blooded that anything short of death seems Commonwealth v. O'Neal, supra, at , 339 N.E. 2d, at 685-686. an inadequate response." Raspberry, Death Sentence, The

Kyle Smith Page 19 of 41 428 U.S. 153, *184; 96 S. Ct. 2909, **2930; 49 L. Ed. 2d 859, ***881; 1976 U.S. LEXIS 82, ****48

[****49] Statistical attempts to evaluate the worth of the murder by a life prisoner, where other sanctions may not death penalty as a deterrent to crimes by potential be adequate. 34 offenders have occasioned a great deal of debate. 31 The results [*185] simply have been inconclusive. As [****51] HN10 one opponent of capital punishment has said: S The value of capital punishment as a deterrent of crime "[A]fter all possible inquiry, including the probing of all is a complex factual issue the resolution of which possible methods of inquiry, we do not know, and for properly rests with the legislatures, which can evaluate systematic and easily visible reasons cannot know, what the results of statistical studies in terms of their own [**2931] the truth about this 'deterrent' effect may be…. local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, supra, "The inescapable flaw is… that social conditions in any at 403-405 (BURGER, C.J., dissenting). Indeed, many state are not constant through time, and that social of the post-Furman statutes reflect just such a conditions are not the same in any two states. If an responsible effort to define those crimes and those effect were observed (and the observed effects, one criminals for which capital punishment is most probably way or another, are not large) then one could not at all an effective deterrent. tell whether any of this effect is attributable to the presence or absence of capital punishment. A 'scientific' In sum, we cannot say that the judgment of the Georgia -- that is to say, a soundly based -- conclusion is simply Legislature that capital punishment may be necessary in impossible, and no methodological path out of this some cases is clearly wrong. Considerations of tangle suggests itself." C. Black, Capital Punishment: federalism, as well as respect for the ability of a The Inevitability of Caprice and Mistake 25-26 (1974).I legislature [*187] to evaluate, in terms of its particular State, the moral consensus concerning the death [****50] Although some of the studies suggest that the penalty and its social utility as a sanction, require us to death penalty may not function as a significantly greater conclude, in the absence of more convincing evidence, 32 deterrent than lesser penalties, there is no convincing that the infliction of death as a punishment for murder is empirical evidence either supporting or refuting this not without justification and thus is not unconstitutionally view. We may nevertheless assume safely that there severe. are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. Finally, we must consider whether the But for many others, the death penalty undoubtedly is a punishment [****52] of death is disproportionate in significant [*186] deterrent. There are carefully relation to the crime for which it is imposed. There is no contemplated murders, such as murder for hire, where question that death as a punishment is unique in its the possible penalty of death may well enter into the severity and irrevocability. Furman v. Georgia, 408 cold calculus that precedes the [***882] decision to act. 33 And there are some categories of murder, such as 33 Other types of calculated murders, apparently occurring with Washington Post, Mar. 12, 1976, p. A27, cols. 5-6. increasing frequency, include the use of bombs or other means of indiscriminate killings, the extortion murder of 31 See, e.g., Peck, The Deterrent Effect of Capital hostages or kidnap victims, and the execution-style killing of Punishment: Ehrlich and His Critics, 85 Yale L.J. 359 (1976); witnesses to a crime. Baldus & Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital 34 We have been shown no statistics breaking down the total Punishment, 85 Yale L.J. 170 (1975); Bowers & Pierce, The number of murders into the categories described above. The Illusion of Deterrence in Isaac Ehrlich's Research on Capital overall trend in the number of murders committed in the Punishment, 85 Yale L.J. 187 (1975); Ehrlich, The Deterrent nation, however, has been upward for some time. In 1964, Effect of Capital Punishment: A Question of Life and Death, 65 reported murders totaled an estimated 9,250. During the Am. Econ. Rev. 397 (June 1975); Hook, The Death Sentence, ensuing decade, the number reported increased 123%, until it in The Death Penalty in America 146 (H. Bedau ed. 1967); T. totaled approximately 20,600 in 1974. In 1972, the year Sellin, The Death Penalty, A Report for the Model Penal Code Furman was announced, the total estimated was 18,520. Project of the American Law Institute (1959). Despite a fractional decrease in 1975 as compared with 1974, the number of murders increased in the three years 32 See, e.g., The Death Penalty in America, supra, at 258- immediately following Furman to approximately 20,400, an 332; Report of the Royal Commission on Capital Punishment, increase of almost 10%. See FBI, Uniform Crime Reports, for 1949-1953, Cmd. 8932. 1964, 1972, 1974, and 1975, Preliminary Annual Release.

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U.S., at 286-291 (BRENNAN, J., concurring); id., at 306 were] among a capriciously selected random handful (STEWART, J., concurring). When a defendant's life is upon whom the sentence of death has in fact been at stake, the Court has been particularly sensitive to imposed…. [T]he Eighth and Fourteenth Amendments insure [**2932] that every safeguard is observed. cannot tolerate the infliction of a sentence of death Powell v. Alabama, 287 U.S. 45, 71 (1932); Reid v. under legal systems that permit this unique penalty to Covert, 354 U.S. 1, 77 (1957) (Harlan, J., concurring in be so wantonly and so freakishly imposed." Id., at 309- result). But we are concerned here only with the 310 (STEWART, J., concurring). 36 imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the [****55] [*189] Furman mandates that HN12 where offender, 35 we cannot say that the punishment is discretion is afforded a sentencing body on a matter so invariably disproportionate to the crime. It is an extreme grave as the determination of whether a human life sanction, suitable to the most extreme of crimes. should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of [****53] We hold that HN11 the death penalty is [***883] wholly arbitrary and capricious action. not a form of punishment that may never be imposed, regardless of the circumstances of the offense, It is certainly not a novel proposition that discretion in regardless of the character of the offender, and the area of sentencing be exercised in an informed regardless of the procedure followed in reaching the manner. We have long recognized that "[f]or the decision to impose it. determination of sentences, justice generally requires… that there be taken into account the circumstances of IV the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, We now consider whether Georgia may impose the 302 U.S. 51, 55 (1937). See also Williams v. death penalty on the petitioner in this case. Oklahoma, 358 U.S. 576, 585 [**2933] (1959); Williams v. New York, 337 U.S., at 247. [***884] 37 Otherwise, [*188] A "the system cannot function in a consistent and a While Furman did not hold that the infliction of the rational manner." American Bar Association Project on death penalty per se violates the Constitution's ban on Standards for Criminal Justice, Sentencing Alternatives cruel and unusual punishments, it did recognize that the and Procedures § 4.1(a), Commentary, p. 201 (App. penalty of death is different in kind from any other Draft 1968). See also President's Commission on Law punishment imposed under our system of criminal Enforcement and Administration of Justice, The justice. Because of the uniqueness of the death Challenge of Crime in a Free Society [****56] 144 penalty, Furman held that it could not be imposed (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. MR. JUSTICE WHITE concluded 36 This view was expressed by other Members of the Court that "the death penalty is exacted with great infrequency who concurred in the judgments. See 408 U.S., at 255-257 even for the most atrocious crimes and… there is no (Douglas, J.); id., at 291-295 (BRENNAN, J.). The dissenters viewed this concern as the basis for the Furman decision: meaningful basis for distinguishing the few cases in "The decisive grievance of the opinions… is that the present which it is imposed [***889] from the many cases in system of discretionary sentencing in capital cases has failed which it is not." 408 U.S., at 313 (concurring). Indeed, to produce evenhanded justice;… that the selection process the death sentences examined [****54] by the Court in has followed no rational pattern." Id., at 398-399 (BURGER, Furman were "cruel and unusual in the same way that C.J., dissenting). being struck by lightning is cruel and unusual. For, of all 37 The Federal Rules of Criminal Procedure require as a matter the people convicted of [capital crimes], many just as of course that a presentence report containing information reprehensible as these, the petitioners [in Furman about a defendant's background be prepared for use by the sentencing judge. Rule 32(c). The importance of obtaining accurate sentencing information is underscored by the Rule's 35 We do not address here the question whether the taking of direction to the sentencing court to "afford the defendant or his the criminal's life is a proportionate sanction where no victim counsel an opportunity to comment [on the report] and, at the has been deprived of life -- for example, when capital discretion of the court, to introduce testimony or other punishment is imposed for rape, kidnaping, or armed robbery information relating to any alleged factual inaccuracy that does not result in the death of any human being. contained in the presentence report." Rule 32(c)(3)(A).

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52-53 (Tent. Draft No. 2, 1954). 38 must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or [****57] [*190] The cited studies assumed that the trial prejudicial [***885] with respect to guilt or innocence judge would be the sentencing authority. If an alone. Trial lawyers understandably have little experienced trial judge, who daily faces the difficult task confidence in a solution that admits the evidence and of imposing sentences, has a vital need for accurate trusts to an instruction to the jury that it should be information about a defendant and the crime he considered only in determining the penalty and committed in order to be able to impose a rational disregarded in assessing guilt. sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite "… The obvious solution… is to bifurcate the to a reasoned determination of whether a defendant proceeding, abiding strictly by the rules of evidence until shall live or die by a jury of people who may never and unless there is a conviction, but once guilt has been before have made a sentencing decision. determined opening the record [**2934] to the further information that is relevant to sentence. This is the Jury sentencing has been considered desirable in analogue of the procedure in the ordinary case when capital cases in order "to maintain a link between capital punishment is not in issue; the [****59] court contemporary community values and the penal system - conducts a separate inquiry before imposing sentence." a link without which the determination of punishment ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 could hardly reflect 'the evolving standards of decency (Tent. Draft No. 9, 1959).I that mark the progress of a maturing society.'" 39 But it creates special problems. Much of the information that See also Spencer v. Texas, 385 U.S. 554, 567-569 is relevant to the sentencing decision may have no (1967); Report of the Royal Commission on Capital relevance to the question of guilt, or may even be Punishment, 1949-1953, Cmd. 8932, [*] [*] 555, 574; extremely prejudicial to a fair determination of that Knowlton, Problems of Jury Discretion in Capital Cases, question. 40 This problem, however, is scarcely 101 U. Pa. L. Rev. 1099, 1135-1136 (1953). When a insurmountable. Those who have studied the human life is at stake and when the jury must have question [****58] suggest that a bifurcated procedure -- information prejudicial to the question of guilt but one in which the [*191] question of sentence is not relevant to the question of penalty in order to impose a considered until the determination of guilt has been rational sentence, a [*192] system is more likely to made - is the best answer. The drafters of the Model ensure elimination of the constitutional deficiencies Penal Code concluded: S identified in Furman. 41

"If a unitary proceeding is used the determination of the [****60] punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a But the provision of relevant information under fair previous criminal record of the accused, or evidence procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a 38 Indeed, we hold elsewhere today that in capital cases it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the character and individual circumstances of a defendant prior to imposition of a 41 In United States v. Jackson, 390 U.S. 570 (1968), the Court death sentence. See Woodson v. North Carolina, post, at considered a statute that provided that if a defendant pleaded 303-305. guilty, the maximum penalty would be life imprisonment, but if a defendant chose to go to trial, the maximum penalty upon 39 Witherspoon v. Illinois, 391 U.S., at 519 n. 15, quoting Trop conviction was death. In holding that the statute was v. Dulles, 356 U.S., at 101 (plurality opinion). See also constitutionally invalid, the Court noted: Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, [*] 571. "The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to 40 In other situations this Court has concluded that a jury plead guilty and to deter exercise of the Sixth Amendment cannot be expected to consider certain evidence before it on right to demand a jury trial. If the provision had no other one issue, but not another. See, e.g., Bruton v. United purpose or effect than to chill the assertion of constitutional States, 391 U.S. 123 (1968); Jackson v. Denna, 378 U.S. rights by penalizing those who choose to exercise them, then 368 (1964). it would be patently unconstitutional." Id., at 581.

Kyle Smith Page 22 of 41 428 U.S. 153, *192; 96 S. Ct. 2909, **2934; 49 L. Ed. 2d 859, ***885; 1976 U.S. LEXIS 82, ****60 jury. Since the members [****61] of a jury will have had Model Penal Code § 201.6, Comment 3, p. 71 (Tent. little, if any, previous experience in sentencing, they are Draft No. 9, 1959) (emphasis in original). 44 HN13 unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives 44 The Model Penal Code proposes the following standards: and Procedures, § 1.1(b), Commentary, pp. 46-47 "(3) Aggravating Circumstances. (Approved Draft 1968); President's Commission on Law Enforcement and Administration of Justice: The "(a) The murder was committed by a convict under sentence Challenge of Crime in a Free Society, Task Force of imprisonment. Report: The Courts 26 (1967). To the extent that this "(b) The defendant was previously convicted of another problem is inherent in jury sentencing, it may not be murder or of a felony involving the use or threat of violence to totally correctable. It seems clear, however, that the the person. problem will be alleviated if the jury is given guidance "(c) At the time the murder was committed the defendant also regarding the factors about the crime and the defendant committed another murder. that the State, representing organized society, deems particularly relevant to the sentencing decision. "(d) The defendant knowingly created a great risk of death to many persons. The idea that a jury should be given guidance in its "(e) The murder was committed while the defendant was [*193] decisionmaking is also hardly a novel engaged or was an accomplice in the commission of, or an proposition. Juries are invariably given careful attempt to commit, or flight after committing or attempting to instructions on the law and how to apply it before they commit robbery, rape or deviate sexual intercourse by force or are authorized to decide the merits of a lawsuit. It would threat of force, arson, burglary or kidnapping. be virtually unthinkable to follow any other course in a "(f) The murder was committed for the purpose of avoiding or legal system that has traditionally operated [****62] by preventing a lawful arrest or effecting an escape from lawful following prior precedents and [***886] fixed rules of custody. law. 42 See Gasoline Products Co. v. Champlin "(g) The murder was committed for pecuniary gain. Refining Co., 283 U.S. 494, 498 (1931); Fed. Rule Civ. Proc. 51. When erroneous instructions are given, retrial "(h) The murder was especially heinous, atrocious or cruel, is often required. It is quite simply a hallmark of our manifesting exceptional depravity. legal system that juries be carefully and adequately "(4) Mitigating Circumstances. guided in their deliberations. "(a) The defendant has no significant history of prior criminal activity. While some have suggested that standards to guide a capital jury's sentencing deliberations are impossible to "(b) The murder was committed while the defendant was formulate, 43 the fact is that such standards have been under the influence of extreme mental or emotional disturbance. developed. When the drafters of the Model Penal Code faced this problem, they [**2935] concluded "that it is "(c) The victim was a participant in the defendant's homicidal within the realm of possibility to point [****63] to the main conduct or consented to the homicidal act. circumstances of aggravation and of mitigation that "(d) The murder was committed under circumstances which should be weighed and weighed against each other the defendant believed to provide a moral justification or when they are presented in a concrete case." ALI, extenuation for his conduct. "(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor. 42 But see Md. Const., Art. XV, § 5: "In the trial of all criminal cases, the jury shall be the Judges of the Law, as well as of "(f) The defendant acted under duress or under the domination fact…." See also Md. Code Ann., art. 27, § 593 (1971). of another person. Maryland judges, however, typically give advisory instructions "(g) At the time of the murder, the capacity of the defendant to on the law to the jury. See Md. Rule 756; Wilson v. State, appreciate the criminality [wrongfulness] of his conduct or to 239 Md. 245, 210 A.2d 824 (1965). conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication. 43 See McGautha v. California, 402 U.S., at 204-207; Report of the Royal Commission on Capital Punishment, 1949-1953, "(h) The youth of the defendant at the time of the crime." ALI Cmd. 8932, [*] 595. Model Penal Code § 210.6 (Proposed Official Draft 1962).

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While such standards are by [*194] necessity [****65] [*196] B somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood LEdHN We now turn to consideration of the that it will impose a sentence that fairly can be [*195] constitutionality of Georgia's capital-sentencing called capricious or arbitrary. 45 Where the sentencing procedures. In the wake of Furman, Georgia amended authority [***887] is required to specify the factors it its capital punishment statute, but chose not to narrow relied upon in reaching its decision, the further the scope of its murder provisions. See Part II, supra. safeguard of meaningful appellate review is available to Thus, now as before Furman, in Georgia HN15 "[a] ensure that death sentences are not imposed person commits murder when he unlawfully and with capriciously or in a freakish manner. malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann., § [****64] In summary, HN14 the concerns expressed in 26-1101(a) (1972). All persons convicted of murder Furman that the penalty of death not be imposed in an "shall be punished by death or by imprisonment for life." arbitrary or capricious manner can be met by a carefully § 26-1101(c) (1972). drafted statute that ensures that the sentencing authority is given adequate information and guidance. Georgia did act, however, to narrow [***888] the class As a general proposition these concerns are best met of murderers subject to capital punishment by specifying by a system that provides for a bifurcated proceeding at 10 [*197] statutory aggravating circumstances, one of which the sentencing authority is apprised of the which must be found by the jury to exist beyond a information relevant to the imposition of sentence and reasonable doubt before a death sentence can ever be 48 provided with standards to guide its use of the imposed. In addition, the jury is authorized to information. consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1 (b) (Supp. 1975). The jury We do not intend to suggest that only the above is not required to find any mitigating circumstance in described procedures would be permissible under order to make a recommendation of mercy that is Furman or that any sentencing system constructed binding on the trial court, see § 27-2302 (Supp. 1975), along these general lines would inevitably satisfy the [****66] but it must find a statutory aggravating concerns of Furman, 46 for each distinct system must be circumstance before recommending a sentence of examined on an individual basis. Rather, we have death. embarked upon this general exposition to make clear that it is possible [**2936] to construct capital- sentencing systems capable of meeting Furman' s proceeding be separated from the guilt-determination process. constitutional concerns. 47 McGautha was not an Eighth Amendment decision, and to the extent it purported to deal with Eighth Amendment concerns, it must be read in light of the opinions in Furman v. Georgia. There the Court ruled that death sentences 45 As MR. JUSTICE BRENNAN noted in McGautha v. imposed under statutes that left juries with untrammeled California, supra, at 285-286 (dissenting opinion): discretion to impose or withhold the death penalty violated the "[E]ven if a State's notion of wise capital sentencing policy is Eighth and Fourteenth Amendments. While Furman did not such that the policy cannot be implemented through a formula overrule McGautha, it is clearly in substantial tension with a capable of mechanical application… there is no reason that it broad reading of McGautha's holding. In view of Furman, should not give some guidance to those called upon to render McGautha can be viewed rationally as a precedent only for decision." the proposition that standardless jury sentencing procedures were not employed in the cases there before the Court so as 46 A system could have standards so vague that they would fail to violate the Due Process Clause. We note that McGautha's adequately to channel the sentencing decision patterns of assumption that it is not possible to devise standards to guide juries with the result that a pattern of arbitrary and capricious and regularize jury sentencing in capital cases has been sentencing like that found unconstitutional in Furman could undermined by subsequent experience. In view of that occur. experience and the considerations set forth in the text, we adhere to Furman's determination that where the ultimate 47 In McGautha v. California, supra, this Court held that the punishment of death is at issue a system of standardless jury Due Process Clause of the Fourteenth Amendment did not discretion violates the Eighth and Fourteenth Amendments. require that a jury be provided with standards to guide its decision whether to recommend a sentence of life 48 The text of the statute enumerating the various aggravating imprisonment or death or that the capital-sentencing circumstances is set out at n.9, supra.

Kyle Smith Page 24 of 41 428 U.S. 153, *197; 96 S. Ct. 2909, **2936; 49 L. Ed. 2d 859, ***888; 1976 U.S. LEXIS 82, ****66

These procedures require the jury to consider the cases in which [the death penalty] is imposed from the circumstances of the crime and the criminal before it many cases in which it is not." 408 U.S., at 313 (WHITE, recommends sentence. No longer can a Georgia jury do J., concurring). as Furman's jury did: reach a finding of the defendant's guilt and then, without guidance or direction, decide The petitioner contends, however, that the changes in whether he should live or die. Instead, the jury's the Georgia sentencing procedures are only cosmetic, attention is directed to the specific circumstances of the that the arbitrariness and capriciousness condemned by crime: Was it committed in the course of another capital Furman continue to exist in Georgia -- both in traditional felony? Was it committed for money? Was it committed practices that still remain and in the new sentencing upon a peace officer or judicial officer? Was it procedures adopted in response to Furman. committed in a particularly heinous way or in a manner [*199] [****69] 1 that endangered the lives of many persons? In addition, the jury's attention is focused on the characteristics of LEdHN First, the petitioner focuses on the opportunities the person who committed the crime: Does he have a for discretionary action that are inherent in the record of prior convictions for capital offenses? Are processing of any murder case under Georgia law. He [****67] there any special facts about this defendant that notes that the state prosecutor has unfettered authority mitigate against imposing capital punishment (e.g., his to select those persons whom he wishes to prosecute youth, the extent of his cooperation with the police, his for a capital offense and to plea bargain with them. emotional state at the time of the crime). 49 As a result, Further, at the trial the jury may choose to convict a while [*198] some jury discretion still exists, "the defendant of a lesser included offense rather than find discretion to be exercised is controlled by clear and him guilty of a crime punishable by death, even if the objective standards so as to produce non-discriminatory evidence would support a capital verdict. And finally, a application." Coley v. State, 231 Ga. 829, 834, 204 defendant who is convicted and sentenced to die may S.E. 2d 612, 615 (1974). have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles. As [**2937] an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme The existence of these discretionary stages is not provides for automatic appeal of all death sentences to determinative of the issues before us. At each of these the State's Supreme Court. That court is required by stages an actor in the criminal justice system makes a statute to review each sentence of death and determine decision which may remove a defendant from whether it was imposed under the influence of passion consideration as a candidate for the death penalty. or prejudice, whether the evidence supports the jury's Furman, in contrast, dealt with the decision to impose finding of a statutory aggravating circumstance, and the death sentence on a specific individual who had whether the sentence is disproportionate [****68] been convicted of a capital offense. Nothing in any of compared to those sentences imposed in similar cases. our cases suggests that the decision to afford an § 27-2537 (c) (Supp. 1975). individual defendant mercy [****70] violates the In short, Georgia's new sentencing procedures require Constitution. Furman held only that, HN16 in order to as a prerequisite to the imposition of the death penalty, minimize the risk that the death penalty would be specific jury findings as to the circumstances of the imposed on a capriciously selected group of offenders, crime or the character of the defendant. Moreover, to the decision to impose it had to be guided by standards guard further against a situation comparable to that so that the sentencing authority would focus on the presented in Furman, the Supreme Court of Georgia particularized circumstances of the crime and the 50 compares each death sentence with the sentences defendant. imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem 50 The petitioner's argument is nothing more than a veiled to satisfy the concerns of Furman. No longer should contention that Furman indirectly outlawed capital punishment there be "no meaningful basis for distinguishing the few by placing totally unrealistic conditions on its use. In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital 49 See Moore v. State, 233 Ga. 861, 865, 213 S.E. 2d 829, murder and that they refuse to plea bargain with the 832 (1975). defendant. If a jury refused to convict even though the

Kyle Smith Page 25 of 41 428 U.S. 153, *199; 96 S. Ct. 2909, **2937; 49 L. Ed. 2d 859, ***888; 1976 U.S. LEXIS 82, ****70

[****71] [*200] 2 murder involves depravity of mind or an aggravated battery. But this language need not be construed in this The petitioner further contends that the capital way, and there is no reason to assume that the sentencing procedures adopted by [**2938] Georgia in Supreme Court of Georgia will adopt such an open- response [***890] to Furman do not eliminate the ended construction. 52 In only one case has it upheld a dangers of arbitrariness and caprice in jury sentencing jury's decision to sentence a defendant to death when that were held in Furman to be violative of the Eighth the only statutory aggravating circumstance found was and Fourteenth Amendments. He claims that the statute that of the seventh, see McCorquodale v. State, 233 is so broad and vague as to leave juries free to act as Ga. 369, 211 S.E. 2d 577 (1974), and that homicide was arbitrarily and capriciously as they wish in deciding a horrifying torture-murder. 53 whether to impose the death penalty. While there is no claim that the jury in this case relied upon a vague or [****73] [*202] The petitioner also argues that two of overbroad provision to establish the existence of a the statutory aggravating circumstances are vague and statutory aggravating circumstance, the petitioner looks therefore susceptible of widely differing interpretations, to the sentencing system as a whole (as the Court did in thus creating a substantial risk that the death penalty Furman and we do today) and argues that it fails to will be arbitrarily inflicted by Georgia juries. 54 [***891] reduce sufficiently the risk of arbitrary infliction of death In light of the decisions of the Supreme [**2939] Court sentences. Specifically, Gregg urges that the statutory of Georgia we must disagree. First, the petitioner aggravating circumstances are too broad and too attacks that part of § 27-2534.1 (b)(1) that authorizes a vague, that the sentencing procedure allows for arbitrary jury to consider whether a defendant has a "substantial grants of mercy, and that the scope of the evidence and argument that can be considered at the presentence hearing is too wide. imprecision renders this capital-sentencing system invalid under the Eighth and Fourteenth Amendments because it is [*201] The petitioner attacks the seventh statutory incapable of imposing capital punishment other than by aggravating circumstance, [****72] which authorizes arbitrariness or caprice. imposition of the death penalty if the murder was 52 "outrageously or wantonly vile, horrible or inhuman in In the course of interpreting Florida's new capital-sentencing that it involved torture, depravity of mind, or an statute, the Supreme Court of Florida has ruled that the phrase "especially heinous, atrocious or cruel" means a aggravated battery to the victim," contending that it is so "conscienceless or pitiless crime which is unnecessarily broad that capital punishment could be imposed in any torturous to the victim." State v. Dixon, 283 So. 2d 1, 9 51 murder case. It is, of course, arguable that any (1973). See Proffitt v. Florida, post, at 255-256. evidence supported the charge, its verdict would have to be 53 Two other reported cases indicate that juries have found reversed and a verdict of guilty entered or a new trial ordered, aggravating circumstances based on § 27-2534.1 (b)(7). In since the discretionary act of jury nullification would not be both cases a separate statutory aggravating circumstance was permitted. Finally, acts of executive clemency would have to also found, and the Supreme Court of Georgia did not be prohibited. Such a system, of course, would be totally alien explicitly rely on the finding of the seventh circumstance when to our notions of criminal justice. it upheld the death sentence. See Jarrell v. State, 234 Ga. 410, 216 S.E. 2d 258 (1975) (State Supreme Court upheld Moreover, it would be unconstitutional. Such a system in finding that defendant committed two other capital felonies -- many respects would have the vices of the mandatory death kidnaping and armed robbery -- in the course of the murder, § penalty statutes we hold unconstitutional today in Woodson v. 27-2534.1 (b)(2); jury also found that the murder was North Carolina, post, p. 280, and Roberts v. Louisiana, post, committed for money, § 27-2534.1 (b)(4), and that a great risk p. 325. The suggestion that a jury's verdict of acquittal could of death to bystanders was created, § 27-2534.1 (b)(3)); Floyd be overturned and a defendant retried would run afoul of the v. State, 233 Ga. 280, 210 S.E. 2d 810 (1974) (found to have Sixth Amendment jury-trial guarantee and the Double committed a capital felony -- armed robbery -- in the course of Jeopardy Clause of the Fifth Amendment. In the federal the murder, § 27-2534.1 (b)(2)). system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve 54 The petitioner also attacks § 25-2534.1 (b)(7) as vague. As one sentenced to death. U.S. Const., Art. II, § 2. we have noted in answering his overbreadth argument concerning this section, however, the state court has not given 51 In light of the limited grant of certiorari, see supra, at 162, a broad reading to the scope of this provision, and there is no we review the "vagueness" and "overbreadth" of the statutory reason to think that juries will not be able to understand it. aggravating circumstances only to consider whether their See n. 51, supra; Proffitt v. Florida, post, at 255-256.

Kyle Smith Page 26 of 41 428 U.S. 153, *202; 96 S. Ct. 2909, **2939; 49 L. Ed. 2d 859, ***891; 1976 U.S. LEXIS 82, ****73 history of serious assaultive criminal convictions." The approve open and far-ranging argument. See, e.g., Supreme Court of Georgia, however, has demonstrated Brown v. State, 235 Ga. 644, 220 [****76] S.E. 2d 922 a concern that the new sentencing procedures provide (1975). So long as the [*204] evidence introduced and guidance to juries. It held this provision to be the arguments made at the presentence hearing do not impermissibly vague in Arnold v. State, 236 Ga. 534, prejudice a defendant, it is preferable not to impose 540, 224 S.E. 2d 386, 391 (1976), because it did not restrictions. We think it desirable for the jury to have as provide the jury with "sufficiently 'clear and objective much information before it as possible when it makes standards.'" Second, the petitioner points to § 27-2534.1 the sentencing decision. [***892] See supra, at 189- (b)(3) which speaks of creating a "great risk of death to 190. more than one person." While such a phrase might be susceptible of an overly broad interpretation, the 3 Supreme Court of Georgia has not so construed it. The only case in which the court upheld a conviction in Finally, the Georgia statute has an additional provision reliance [****74] on this aggravating circumstance designed to assure that the death penalty will not be involved a man who stood up in a church and fired a imposed on a capriciously selected group of convicted gun indiscriminately into the audience. See [*203] defendants. The new sentencing procedures require Chenault v. State, 234 Ga. 216, 215 S.E. 2d 223 that the State Supreme Court review every death (1975). On the other hand, the court expressly reversed sentence to determine whether it was imposed under a finding of great risk when the victim was simply the influence of passion, prejudice, or any other arbitrary kidnaped in a parking lot. See Jarrell v. State, 234 Ga. factor, whether the evidence supports the findings of a 410, 424, 216 S.E. 2d 258, 269 (1975). 55 statutory aggravating circumstance, and "[w]hether the sentence of death is excessive or disproportionate to [****75] The petitioner next argues that the the penalty imposed in similar cases, considering both requirements of Furman are not met here because the the crime and the defendant. [**2940] " § 27-2537 (c)(3) jury has the power to decline to impose the death (Supp. 1975). 56 In performing [*205] its sentence- penalty even if it finds that one or more statutory review function, the Georgia court has held that "if the aggravating circumstances are present in the case. death penalty is only rarely imposed for an act or it is This contention misinterprets Furman. See supra, at substantially out of line with sentences [****77] imposed 198-199. Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other sentences 56 The court is required to specify in its opinion the similar imposed for similar crimes. Since the proportionality cases which it took into consideration. § 27-2537 (e) (Supp. requirement on review is intended to prevent caprice in 1975). Special provision is made for staff to enable the court the decision to inflict the penalty, the isolated decision of to compile data relevant to its consideration of the sentence's a jury to afford mercy does not render unconstitutional validity. §§ 27-2537 (f)-(h) (Supp. 1975). See generally death sentences imposed on defendants who were supra, at 166-168. sentenced under a system that does not create a The petitioner claims that this procedure has resulted in an substantial risk of arbitrariness or caprice. inadequate basis for measuring the proportionality of sentences. First, he notes that nonappealed capital The petitioner objects, finally, to the wide scope of convictions where a life sentence is imposed and cases evidence and argument allowed at presentence involving homicides where a capital conviction is not obtained hearings. We think that the Georgia court wisely has are not included in the group of cases which the Supreme chosen not to impose unnecessary restrictions on the Court of Georgia uses for comparative purposes. The Georgia evidence that can be offered at such a hearing and to court has the authority to consider such cases, see Ross v. State, 233 Ga. 361, 365-366, 211 S.E. 2d 356, 359 (1974), and it does consider appealed murder cases where a life 55 The petitioner also objects to the last part of § 27-2534.1 sentence has been imposed. We do not think that the (b)(3) which requires that the great risk be created "by means petitioner's argument establishes that the Georgia court's of a weapon or device which would normally be hazardous to review process is ineffective. The petitioner further complains the lives of more than one person." While the state court has about the Georgia court's current practice of using some pre- not focused on this section, it seems reasonable to assume Furman cases in its comparative examination. This practice that if a great risk in fact is created, it will be likely that a was necessary at the inception of the new procedure in the weapon or device normally hazardous to more than one absence of any post-Furman capital cases available for person will have created it. comparison. It is not unconstitutional.

Kyle Smith Page 27 of 41 428 U.S. 153, *205; 96 S. Ct. 2909, **2940; 49 L. Ed. 2d 859, ***892; 1976 U.S. LEXIS 82, ****77 for other acts it will be set aside as excessive." Coley v. defendants who were being condemned to death State, 231 Ga., at 834, 204 S.E. 2d, at 616. The court capriciously and arbitrarily. Under the procedures on another occasion stated that "we view it to be our before the Court in that case, sentencing authorities duty under the similarity standard to assure that no were not directed to give attention to the nature or death sentence is affirmed unless in similar cases circumstances of the crime committed or to the throughout the state the death penalty has been character or record of the defendant. [**2941] Left imposed generally…." Moore v. State, 233 Ga. 861, unguided, juries imposed the death sentence in a way 864, 213 S.E. 2d 829, 832 (1975). See also Jarrell v. that could only be called freakish. The new Georgia State, supra, at 425, 216 S.E. 2d, at 270 (standard is sentencing procedures, by contrast, focus the jury's whether "juries generally throughout the state have attention on the particularized [****80] nature of the imposed the death penalty"); Smith v. State, 236 Ga. crime and the particularized characteristics of the 12, 24, 222 S.E. 2d 308, 318 (1976) (found "a clear individual defendant. While the jury is permitted to pattern" of jury behavior). consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating [****78] It is apparent that the Supreme Court of factor before it may impose a penalty of death. In this Georgia has taken its review responsibilities seriously. way the jury's discretion is channeled. No longer [*207] In Coley, it held that "[the] prior cases indicate that the can a jury wantonly and freakishly impose the death past practice among juries faced with similar factual sentence; it is always circumscribed by the legislative situations and like aggravating circumstances has been guidelines. In addition, the review function of the to impose only the sentence of life imprisonment for the Supreme Court of Georgia affords additional assurance offense of rape, rather than death." 231 Ga., at 835, 204 that the concerns that prompted our decision in Furman S.E. 2d, at 617. It thereupon reduced Coley's sentence are not present to any significant degree in the Georgia from death to life imprisonment. Similarly, although procedure applied here. armed robbery is a capital offense under Georgia law, § 26-1902 (1972), the Georgia court concluded that the For the reasons expressed in this opinion, we hold that death sentences imposed in this case for that crime the statutory system under which Gregg was sentenced were "unusual in that they are rarely imposed for [armed to death does not violate the Constitution. Accordingly, robbery]. Thus, under the test provided by statute,… the judgment of the Georgia Supreme Court is affirmed. they must be considered to be excessive or [***893] disproportionate to the penalties imposed in similar It is so ordered. cases." 233 [*206] Ga., at 127, 210 S.E. 2d, at 667. The Concur by: WHITE; BLACKMUN court therefore vacated Gregg's death sentences for armed robbery and has followed a similar course in every other armed robbery death penalty case to come Concur before it. See Floyd v. State, 233 Ga. 280, 285, 210 S.E. 2d 810, 814 (1974); Jarrell v. State, [****79] 234 MR. JUSTICE WHITE, with whom THE CHIEF Ga., at 424-425, 216 S.E. 2d, at 270. See Dorsey v. JUSTICE and MR. JUSTICE REHNQUIST join, State, 236 Ga. 591, 225 S.E. 2d 418 (1976). concurring in the judgment.

The provision for appellate review in the Georgia LEdHN In Furman v. Georgia, 408 U.S. 238 (1972), capital-sentencing system serves as a check against the this Court held the death penalty as then administered random or arbitrary imposition of the death penalty. In in Georgia [****81] to be unconstitutional. That same particular, the proportionality review substantially year the Georgia Legislature enacted a new statutory eliminates the possibility that a person will be sentenced scheme under which the death penalty may be imposed to die by the action of an aberrant jury. If a time comes for several offenses, including murder. The issue in this when juries generally do not impose the death sentence case is whether the death penalty imposed for murder in a certain kind of murder case, the appellate review on petitioner Gregg under the new Georgia statutory procedures assure that no defendant convicted under scheme may constitutionally be carried out. I agree that such circumstances will suffer a sentence of death. it may.

V [***894] I

The basic concern of Furman centered on those Under the new Georgia statutory scheme a person

Kyle Smith Page 28 of 41 428 U.S. 153, *207; 96 S. Ct. 2909, **2941; 49 L. Ed. 2d 859, ***894; 1976 U.S. LEXIS 82, ****81 convicted of murder may receive a sentence either of " [**2942] (1) The offense of murder, rape, armed death or of life imprisonment. Ga. Code Ann. § 26- robbery, [*209] or kidnapping was committed by a 1101 (1972). 1 Under Georgia Code Ann. § 26-3102 person with a prior record of conviction for a capital (Supp. [*208] 1975), the sentence will be life felony, or the offense of murder was committed by a imprisonment unless the jury at a separate evidentiary person [*210] who has a substantial history of serious proceeding immediately following the verdict finds assaultive criminal convictions. unanimously and beyond a reasonable doubt at least one statutorily defined "aggravating circumstance." "(2) The offense of murder, [****82] rape, armed 2 [***895] The aggravating circumstances are: S robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of 1 Section 26-1101 provides as follows: murder was committed while the offender was engaged "Murder. in the commission of burglary or arson in the first degree. "(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the "(3) The offender by his act of murder, armed robbery, death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances argument of counsel and proper charge from the court, the capable of proof. Malice shall be implied where no jury shall retire to consider a verdict of guilty or not guilty considerable provocation appears, and where all the without any consideration of punishment. In non-jury felony circumstances of the killing show an abandoned and cases, the judge shall likewise first consider a finding of guilty malignant heart. or not guilty without any consideration of punishment. Where the jury or judge returns a verdict or finding of guilty, the court "(b) A person also commits the crime of murder when in the shall resume the trial and conduct a pre-sentence hearing commission of a felony he causes the death of another human before the jury or judge at which time the only issue shall be being, irrespective of malice. the determination of punishment to be imposed. In such "(c) A person convicted of murder shall be punished by death hearing, subject to the laws of evidence, the jury or judge shall or by imprisonment for life." The death penalty may also be hear additional evidence in extenuation, mitigation, and imposed for kidnaping, Ga. Code Ann. § 26-1311; armed aggravation of punishment, including the record of any prior robbery, § 26-1902; rape, § 26-2001; treason, § 26-2201; and criminal convictions and pleas of guilty or pleas of nolo aircraft hijacking, § 26-3301. contendere of the defendant, or the absence of any such prior criminal convictions and pleas; provided, however, that only 2 Section 26-3102 (Supp. 1975) provides: such evidence in aggravation as the State has made known to "Capital offenses; jury verdict and sentence. the defendant prior to his trial shall be admissible. The jury or judge shall also hear argument by the defendant or his "Where, upon a trial by jury, a person is convicted of an counsel and the prosecuting attorney, as provided by law, offense which may be punishable by death, a sentence of regarding the punishment to be imposed. The prosecuting death shall not be imposed unless the jury verdict includes a attorney shall open and the defendant shall conclude the finding of at least one statutory aggravating circumstance and argument to the jury or judge. Upon the conclusion of the a recommendation that such sentence be imposed. Where a evidence and arguments, the judge shall give the jury statutory aggravating circumstance is found and a appropriate instructions and the jury shall retire to determine recommendation of death is made, the court shall sentence the punishment to be imposed. In cases in which the death the defendant to death. Where a sentence of death is not penalty may be imposed by a jury or judge sitting without a recommended by the jury, the court shall sentence the jury, the additional procedure provided in Code section 27- defendant to imprisonment as provided by law. Unless the 2534.1 shall be followed. The jury, or the judge in cases tried jury trying the case makes a finding of at least one statutory by a judge, shall fix a sentence within the limits prescribed by aggravating circumstance and recommends the death law. The judge shall impose the sentence fixed by the jury or sentence in its verdict, the court shall not sentence the judge, as provided by law. If the jury cannot, within a defendant to death, provided that no such finding of statutory reasonable time, agree to the punishment, the judge shall aggravating circumstance shall be necessary in offenses of impose sentence within the limits of the law; provided, treason or aircraft hijacking. The provisions of this section however, that the judge shall in no instance impose the death shall not affect a sentence when the case is tried without a jury penalty when, in cases tried by a jury, the jury cannot agree or when the judge accepts a plea of guilty." upon the punishment. If the trial court is reversed on appeal Georgia Laws, 1973, Act No. 74, p. 162, provides: because of error only in the pre-sentence hearing, the new trial which may be ordered shall apply only to the issue of "At the conclusion of all felony cases heard by a jury, and after punishment."

Kyle Smith Page 29 of 41 428 U.S. 153, *210; 96 S. Ct. 2909, **2942; 49 L. Ed. 2d 859, ***895; 1976 U.S. LEXIS 82, ****82 or kidnapping knowingly created a great risk of death to whether to sustain the death penalty, the Georgia more than one person in a public place by means of a Supreme Court is supplied, in every case, with a report weapon or device which would normally be hazardous from the trial judge in the form of a standard to the lives of more than one person. questionnaire. § 27-2537 (a) (Supp. 1975). The questionnaire contains, inter alia, six questions "(4) The offender committed the offense of murder for designed to disclose whether race played a role in the himself or another, for the purpose of receiving money case and one question asking the trial judge whether or any other thing of monetary value. the evidence forecloses "all doubt respecting the defendant's [*212] guilt." In deciding whether the death "(5) The murder of a judicial officer, former judicial penalty is to be sustained in any given case, the court officer, district attorney or solicitor or former district shall determine: S attorney or solicitor during or because of the exercise of his official duty. "(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary "(6) The offender caused or directed another to commit factor, and murder or committed murder as an agent or employee of another person. "(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's "(7) The offense of murder, rape, armed robbery, or finding of a statutory aggravating circumstance as kidnapping was outrageously or wantonly vile, horrible enumerated in section 27-2534.1 (b), and or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the [****83] victim. "(3) Whether the sentence of death is excessive or disproportionate to the [****86] penalty imposed in "(8) The offense of murder was committed against any similar cases, considering both the crime and the peace officer, corrections employee or fireman while defendant…."I engaged in the performance of his official duties. In order that information regarding "similar cases" may [*211] "(9) The offense of murder was committed by a be before the court, the post of Assistant to the person in, or who has escaped from, the lawful custody Supreme Court was created. The Assistant must of a peace officer or place of lawful confinement. "accumulate the records of all capital felony cases in "(10) The murder was committed for the purpose of which sentence was imposed after January 1, 1970, or avoiding, interfering with, or preventing a lawful arrest or such earlier date as the court may deem appropriate." § 3 custody in a place of lawful confinement, of himself or 27-2537 (f). The court is required to include in its another." § 27-2534.1 (b) (Supp. 1975).I decision a reference to "those similar cases which it took into consideration." § 27-2537 (e). Having found an aggravating circumstance, however, the jury is not required to impose the death penalty. II Instead, it is merely [**2943] authorized to impose it Petitioner Troy Gregg and a 16-year-old companion, after considering evidence of "any mitigating Floyd Allen, were hitchhiking from Florida to Asheville, circumstances or aggravating circumstances otherwise N.C., on November 21, 1973. They were picked up in authorized by law and any of the [enumerated] statutory an automobile driven by Fred Simmons [****87] and Bob aggravating circumstances…." § 27-2534.1 (b) (Supp. Moore, both of whom were drunk. The car broke down 1975). Unless the jury unanimously determines that the and Simmons purchased a new one -- a 1960 Pontiac -- death penalty should be imposed, the defendant will be using [*213] part of a large roll of cash which he had sentenced to life imprisonment. In the event that the with him. After picking up another hitchhiker in Florida jury does impose the death penalty, it must designate in and dropping him off in Atlanta, the car proceeded north writing the aggravating circumstance which it found to exist beyond a reasonable [****84] doubt.

[****85] An important aspect of the new [***896] 3 Section 27-2537 (g) provides: Georgia legislative scheme, however, is its provision for "The court shall be authorized to employ an appropriate staff appellate review. Prompt review by the Georgia and such methods to compile such data as are deemed by the Supreme Court is provided for in every case in which Chief Justice to be appropriate and relevant to the statutory the death penalty is imposed. To assist it in deciding questions concerning the validity of the sentence…."

Kyle Smith Page 30 of 41 428 U.S. 153, *213; 96 S. Ct. 2909, **2943; 49 L. Ed. 2d 859, ***896; 1976 U.S. LEXIS 82, ****87 to Gwinnett County, Ga., where it stopped so that Moore When Allen had finished telling this story, one of the and Simmons could urinate. While they were out of the officers asked petitioner if this was the way it had car Simmons was shot in the eye and Moore was shot happened. Petitioner hung his head and said that it in the right cheek and in the back of the head. Both was. The officer then said: "You mean you shot these died as a result. men down in cold blooded murder just to rob them," and petitioner said yes. The officer then asked him why and On November 24, 1973, at 3 p.m., on the basis of petitioner said he did not know. Petitioner was indicted information supplied by the hitchhiker, petitioner and in two counts for murder and in two counts for robbery. Allen were arrested in Asheville, N.C. They were then in possession of the car which Simmons had purchased; At trial, petitioner's defense was that he had killed in petitioner was in possession of the [***897] gun which self-defense. He testified in his own behalf and told a had killed Simmons and Moore and $107 which had version of the events similar to that which he had been taken from them; and in the motel room in which originally told to the Gwinnett County police. On cross- petitioner was staying was a new stereo and a car examination, he was confronted with a letter to Allen stereo player. recounting a version of the events similar to that to which he had just testified and instructing Allen to At about 11 p.m., after the Gwinnett County police had [****90] memorize and burn the letter. Petitioner arrived, petitioner made a statement to them admitting conceded writing the version of the events, but denied that he had killed Moore and Simmons, but asserting writing the portion of the letter which instructed Allen to [**2944] that he had killed them in self-defense and in memorize and burn it. In rebuttal, the State called a defense of Allen. He also admitted robbing [****88] handwriting expert who testified that the entire letter was them of $400 and taking their car. A few moments later written by the same person. petitioner was asked why he had shot Moore and Simmons and responded: "By God, I wanted them [*215] The jury was instructed on the elements [***898] dead." of murder 4 and robbery. The trial judge gave an

At about 1 o'clock the next morning, petitioner and Allen were released to the custody of the Gwinnett County 4 The court said: police and were transported in two cars back to "And, I charge you that our law provides, in connection with Gwinnett County. On the way, at about 5 a.m., the car the offense of murder the following. A person commits murder stopped at the place where Moore and Simmons had when he unlawfully and with malice aforethought, either been killed. Everyone got out of the car. Allen was express or implied causes the death of another human being. asked, in petitioner's presence, how the killing occurred. "Express malice is that deliberate intention, unlawfully to take He said that he had been sitting in the back seat of the away the life of a fellow creature which is manifested by 1960 Pontiac and was about half asleep. He woke up external circumstances, capable of proof. when the car stopped. Simmons and Moore got out, and as soon as they did petitioner turned around and "Malice shall be implied where no considerable provacation told Allen: "Get out, we're going to rob them." Allen said appears and where all of the circumstances of the killing show an abandoned and malignant heart. that he [*214] got out and walked toward the back of the car, looked around and could see petitioner, with a gun "Section B of this Code Section, our law provides that a in his hand, leaning up against the car so he could get a person also commits the crime of murder when in the good aim. Simmons and Moore had gone down the commission of a felony he causes the death of another human bank and had relieved themselves and as they were being irrespective of malice. coming up the bank petitioner fired three shots. One of "Now, then, I charge you that if you find and believe beyond a the men fell, the other staggered. Petitioner then circled reasonable doubt that the defendant did commit the homicide around [****89] the back and approached the two men, in the two counts alleged in this indictment, at the time he was both of whom were now lying in the ditch, from behind. engaged in the commission of some other felony, you would He placed the gun to the head of one of them and pulled be authorized to find him guilty of murder. the trigger. Then he went quickly to the other one and "In this connection, I charge you that in order for a homicide to placed the gun to his head and pulled the trigger again. have been done in the perpetration of a felony, there must be He then took the money, whatever was in their pockets. some connection between the felony and the homicide. The He told Allen to get in the car and they drove away. homicide must have been done in pursuance of the unlawful act not collateral to it. It is not enough that the homicide occurred soon or presently after the felony was attempted or

Kyle Smith Page 31 of 41 428 U.S. 153, *215; 96 S. Ct. 2909, **2944; 49 L. Ed. 2d 859, ***898; 1976 U.S. LEXIS 82, ****90 instruction on self-defense, but refused [**2945] to emphasized the possibility that a mistake had been submit the lesser included [*216] offense of made and that petitioner was not guilty. The trial judge manslaughter to the jury. It returned verdicts of guilty on instructed the jury on [*217] their sentencing function all counts. and in so doing submitted to them three statutory [***899] aggravating circumstances. He stated: S [****91] No new evidence was presented at the sentencing proceeding. However, the prosecutor and "Now, as to counts one and three, wherein the the attorney for petitioner each made arguments to the defendant is charged with the murders of -- has been jury on the issue of punishment. The prosecutor found guilty of the murders of [Simmons and Moore], the emphasized the strength of the case against petitioner following aggravating circumstances are some that you and the fact that he had murdered in order to eliminate can consider, as I say, you must find that these existed the witnesses to the robbery. The defense attorney beyond a reasonable doubt before the death penalty can be imposed. "One -- That the offense of murder committed, there must be such a legal relationship between was committed while the offender was engaged in the the homicide and the felony that you find that the homicide commission of two other capital felonies, to-wit the occurred by reason of and a part of the felony or that it armed robbery of [Simmons and Moore]. "Two -- That occurred before the felony was at an end, so that the felony the offender committed the offense of murder for the had a legal relationship to the homicide and was concurrent purpose [****92] of receiving money and the automobile with it in part at least, and a part of it in an actual and material described in the indictment. "Three -- The offense of sense. A homicide is committed in the perpetration of a felony murder was outrageously and wantonly vile, horrible when it is committed by the accused while he is engaged in and inhuman, in that they involved the depravity of mind the performance of any act required for the full execution of of the defendant. "Now, so far as the counts two and such felony. four, that is the counts of armed robbery, of which you "I charge you that if you find and believe beyond a reasonable have found the defendant guilty, then you may find -- doubt that the homicide alleged in this indictment was caused inquire into these aggravating circumstances. "That the by the defendant while he, the said accused was in the offense of armed robbery was committed while the commission of a felony as I have just given you in this charge, offender was engaged in the commission of two capital you would be authorized to convict the defendant of murder. felonies, to-wit the murders of [Simmons and Moore] or "And this you would be authorized to do whether the that the offender committed the offense of armed defendant intended to kill the deceased or not. A homicide, robbery for the purpose of receiving money and the although unintended, if committed by the accused at the time automobile set forth in the indictment, or three, that the he is engaged in the commission of some other felony offense of armed robbery was outrageously and constitutes murder. wantonly vile, horrible and inhuman in that they involved "In order for a killing to have been done in perpetration or the depravity of the mind of the defendant. [*218] attempted perpetration of a felony, or of a particular felony, "Now, if you find that there was one or more of these there must be some connection as I previously charged you aggravating circumstances [**2946] existed beyond a between the felony and the homicide. reasonable doubt, then and I refer to each individual "Before you would be authorized to find the defendant guilty of count, then you would be authorized to consider the offense of murder, you must find and believe beyond a imposing the sentence of death. "If you do not find that reasonable doubt, that the defendant did, with malice one of these aggravating circumstances existed [****93] aforethought either express or implied cause the deaths of beyond a reasonable doubt, in either of these counts, [Simmons or Moore] or you must find and believe beyond a then you would not be authorized to consider the reasonable doubt that the defendant, while in the commission penalty of death. In that event, the sentence as to of a felony caused the death of these two victims just named. counts one and three, those are the counts wherein the "I charge you, that if you find and believe that, at any time prior defendant was found guilty of murder, the sentence to the date this indictment was returned into this court that the could be imprisonment for life." Tr. 476-477.I defendant did, in the county of Gwinnett, State of Georgia, with malice aforethought kill and murder the two men just The jury returned the death penalty on all four counts named in the way and manner set forth in the indictment or finding all the aggravating circumstances submitted to it, that the defendant caused the deaths of these two men in the except that it did not find the crimes to have been way and manner set forth in the indictment, while he, the said "outrageously or wantonly vile," etc. accused was in the commission of a felony, then in either event, you would be authorized to find the defendant guilty of On appeal the Georgia Supreme Court affirmed the murder."

Kyle Smith Page 32 of 41 428 U.S. 153, *218; 96 S. Ct. 2909, **2946; 49 L. Ed. 2d 859, ***899; 1976 U.S. LEXIS 82, ****93 death sentences on the murder counts and vacated the 210 S.E.2d, at 667.I death sentences on the robbery counts. 233 Ga. 117, 210 S.E.2d 659 (1974). It concluded that the murder [**2947] However, it held with respect to the robbery sentences were not imposed under the influence of sentences: S passion, prejudice, or any other arbitrary factor; that the "Although there is no indication that these two [*220] evidence supported the finding of a statutory sentences were imposed under the influence of passion, aggravating factor with respect to the murders; and, prejudice or any other arbitrary factor, the sentences citing several cases in which the death penalty had imposed here are unusual in that they are rarely been imposed previously for murders of persons who imposed for this offense. Thus, under the test provided had witnessed a robbery, held: S by statute for comparison (Code Ann. § 27-2537 (c), (3)), they must be considered to be excessive or " [***900] After considering both the crimes and the disproportionate to the penalties imposed in similar defendant and after comparing the evidence and the cases." Ibid.I sentences in this case with those [****94] of previous murder cases, we are also of the opinion that these two Accordingly, the sentences on the robbery counts were sentences of death are not excessive or vacated. disproportionate to the penalties imposed in similar 5 cases [*219] which are hereto attached." Id., at 127, [****95] III

TThe threshold question in this case [***901] is whether 5 In a subsequently decided robbery-murder case, the the death penalty may be carried out for murder under Georgia Supreme Court had the following to say about the the Georgia legislative scheme consistent with the same "similar cases" referred to in this case: decision in Furman v. Georgia, supra. In Furman, this

"We have compared the evidence and sentence in this case with other similar cases and conclude the sentence of death is Supreme Court stated: not excessive or disproportionate to the penalty imposed in "The cases reviewed included all murder cases coming to this those cases. Those similar cases we considered in reviewing court since January 1, 1970. All kidnapping cases were the case are: Lingo v. State, 226 Ga. 496 (175 SE2d 657), likewise reviewed. The comparison involved a search for Johnson v. State, 226 Ga. 511 (175 SE2d 840), Pass v. similarities in addition to the similarity of offense charged and State, 227 Ga. 730 (182 SE2d 779), Watson v. State, 229 sentence imposed. Ga. 787 (194 SE2d 407), Scott v. State, 230 Ga. 413 (197 SE2d 338), Kramer v. State, 230 Ga. 855 (199 SE2d 805), "All of the murder cases selected for comparison involved and Gregg v. State, 233 Ga. 117 (210 SE2d 659). murders wherein all of the witnesses were killed or an attempt was made to kill all of the witnesses, and kidnapping cases "In each of the comparison cases cited, the records show that where the victim was killed or seriously injured. the accused was found guilty of murder of the victim of the "The cases indicate that, except in some special circumstance robbery or burglary committed in the course of such robbery or such as a juvenile or an accomplice driver of a get-away burglary. In each of those cases, the jury imposed the vehicle, where the murder was committed and trial held at a sentence of death. In Pass v. State, supra, the murder took time when the death penalty statute was effective, juries place in the victim:s home, as occurred in the case under generally throughout the state have imposed the death consideration. penalty. The death penalty has also been imposed when the kidnap victim has been mistreated or seriously injured. In this "We find that the sentence of death in this case is not case the victim was murdered. excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code "The cold blooded and callous nature of the offenses in this Ann. § 27-2537 (c) (3). Notwithstanding the fact that there case are the types condemned by death in other cases. This have been cases in which robbery victims were murdered and defendant's death sentences for murder and kidnapping are the juries imposed life sentences (see Appendix), the cited not excessive or disproportionate to the penalty imposed in cases show that juries faced with similar factual situations similar cases. Using the standards prescribed for our review have imposed death sentences. Compare Coley v. State, 231 by the statute, we conclude that the sentences of death Ga. 829, 835, supra. Thus the sentence here was not imposed in this case for murder and kidnapping were not 'wantonly and freakishly imposed' (see above)." Moore v. imposed under the influence of passion, prejudice or any other State, 233 Ga. 861, 865-866, 213 S.E.2d 829, 833 (1975). arbitrary factor." Jarrell v. State, 234 Ga. 410, 425-426, 216 In another case decided after the instant case the Georgia S.E. 2d 258, 270 (1975).

Kyle Smith Page 33 of 41 428 U.S. 153, *220; 96 S. Ct. 2909, **2947; 49 L. Ed. 2d 859, ***901; 1976 U.S. LEXIS 82, ****95

Court held that as a result of giving the sentencer evidence, and is told that it may not impose the death unguided discretion to impose or not to impose the penalty unless it unanimously finds at least one of those death penalty for murder, the penalty was being factors to have been established beyond a reasonable imposed discriminatorily, [*221] 6 wantonly and doubt. The Georgia Legislature has plainly made an freakishly, 7 and so infrequently 8 that any given death effort to guide the jury in the exercise of its discretion, sentence was cruel and unusual. Petitioner argues that, while at the same time permitting the jury to dispense as in Furman, the jury is still the sentencer; that the mercy on the basis of factors too intangible to write into statutory criteria to be considered by the jury on the a statute, and I cannot accept the naked assertion that issue of sentence under Georgia's new statutory the effort is bound to fail. As the types of murders for scheme are vague and do not purport to be all-inclusive; which the death penalty may be imposed become more and that, in any event, there are no circumstances [**2948] narrowly defined and are limited to those which under which the jury is required to impose the death are particularly serious or for which the death penalty is penalty. 9 Consequently, the petitioner argues that the peculiarly appropriate as they are in Georgia by reason death penalty will inexorably be imposed in as of the aggravating-circumstance requirement, it discriminatory, standardless, and rare a manner as it becomes reasonable to expect that juries -- was imposed under the scheme declared invalid in even [****97] given discretion [***902] not to impose the Furman. death penalty -- will impose the death penalty in a substantial portion of the cases so defined. If they do, it [****96] The argument is considerably overstated. The can no longer be said that the penalty is being imposed Georgia Legislature has made an effort to identify those wantonly and freakishly or so infrequently that it loses its aggravating factors which it considers necessary and usefulness as a sentencing device. There is, therefore, relevant to the question whether a defendant convicted reason to expect that Georgia's current system would of capital murder should be sentenced to death. 10 The escape the infirmities which invalidated its previous [*222] jury which imposes sentence is instructed on all system under Furman. However, the Georgia statutory aggravating factors which are supported by the Legislature was not satisfied with a system which might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency 6 See Furman v. Georgia, 408 U.S., at 240 (Douglas, J., for certain serious murders. Instead, it gave the Georgia concurring). Supreme Court the power and the obligation to perform precisely the task which three Justices of this Court, 7 See id., at 306 (STEWART, J., concurring). whose opinions were necessary to the result, performed [*223] in Furman: namely, the task of deciding whether 8 See id., at 310 (WHITE, J., concurring). in fact the death penalty was being administered for 9 Petitioner also argues that the differences between murder -- any given class of crime in a discriminatory, for which the death penalty may be imposed -- and standardless, or rare fashion. manslaughter -- for which it may not be imposed -- are so difficult to define and the jury's ability to disobey the trial [****98] In considering any given death sentence on judge's instructions so unfettered that juries will use the guilt- appeal, the Georgia Supreme Court is to determine determination phase of a trial arbitrarily to convict some of a whether the sentence imposed was consistent with the capital offense while convicting similarly situated individuals relevant statutes - i.e., wh consistent with the relevant only of noncapital offenses. I believe this argument is support the finding of an aggravating circumstance. Ga. enormously overstated. However, since the jury has Code Ann. § 27-2537 (c)(2) (Supp. 1975). However, it discretion not to impose the death penalty at the sentencing must do much more than determine whether the penalty phase of a case in Georgia, the problem of offense definition was lawfully imposed. It must go on to decide -- after and jury nullification loses virtually all its significance in this case. reviewing the penalties imposed in "similar cases" -- whether the penalty is "excessive or disproportionate" 10 The factor relevant to this case is that the "murder… was considering both the crime and the defendant. § 27- committed while the offender was engaged in the commission 2537 (c)(3) (Supp. 1975). The new Assistant to the of another capital felony." The State in its brief refers to this Supreme Court is to assist the court in collecting the type of murder as "witness-elimination" murder. Apparently the records of "all capital felony cases" 11 in the State of State of Georgia wishes to supply a substantial incentive to those engaged in robbery to leave their guns at home and to persuade their coconspirators to do the same in the hope that fewer victims of robberies will be killed. 11 Petitioner states several times without citation that the only

Kyle Smith Page 34 of 41 428 U.S. 153, *223; 96 S. Ct. 2909, **2948; 49 L. Ed. 2d 859, ***902; 1976 U.S. LEXIS 82, ****98

Georgia in which sentence was imposed after January imposition of the penalty condemned by the judgment in 1, 1970. § 27-2537 (f) (Supp. 1975). The court also Furman. I address this [*225] point separately has the obligation of determining whether the penalty because the cases in which no capital offense is was "imposed under the influence of passion, prejudice, charged escape the view of the Georgia Supreme Court or any other arbitrary factor." § 27-2537 (c) (1) (Supp. and are not considered by it in determining whether a 1975). The Georgia Supreme Court has interpreted the particular sentence is excessive or disproportionate. appellate review statute to require it to set aside the death sentence whenever juries across the State Petitioner's argument that prosecutors behave in a impose it only [****99] rarely for the type of crime in standardless fashion in deciding which cases to try as question; but to require it to affirm death sentences capital felonies is unsupported by any facts. Petitioner whenever juries across the State generally impose it for simply asserts that since prosecutors have the power the crime in question. [*224] Thus, in this case the not to charge capital felonies they will exercise that Georgia Supreme Court concluded that the death power in a standardless fashion. This is untenable. penalty was so rarely imposed for the crime of robbery Absent facts to the contrary, it cannot be assumed that that it set aside the sentences on the robbery counts, prosecutors will be motivated in their charging decision and effectively foreclosed that penalty from being by factors other than the strength of their case and the imposed for that crime in the future under the legislative likelihood that a jury would impose the death penalty if it scheme now in existence. Similarly, the Georgia convicts. Unless prosecutors are incompetent in their Supreme Court has determined that juries impose the judgments, the standards by which they decide whether death sentence too rarely with respect to certain classes to charge a capital felony will be the same as those by of rape. Compare Coley v. State, 231 Ga. 829, 204 which [****102] the jury will decide the questions of guilt S.E. 2d 612 (1974), with Coker v. State, 234 Ga. 555, and sentence. Thus defendants will escape the death 216 S.E.2d 782 (1975). However, it concluded that penalty through prosecutorial charging decisions only juries "generally throughout the state" have imposed the because the offense is not sufficiently serious; or death penalty for those who murder witnesses to armed because the proof is insufficiently strong. This does not robberies. Jarrell v. State, 234 Ga. 410, 425, [***903] cause the system to be standardless any more than the 216 S.E. 2d 258, 270 (1975). Consequently, it affirmed jury's decision to impose life imprisonment on a the sentences in this case on the murder counts. If the defendant whose crime is deemed insufficiently serious Georgia Supreme Court is correct with respect to this or its decision to acquit someone who is probably guilty factual judgment, imposition of the death penalty in this but whose guilt is not established beyond a reasonable and [****100] similar cases is consistent with Furman. doubt. Thus the prosecutor's charging decisions are Indeed, if the Georgia Supreme Court properly performs unlikely to have removed from the sample of cases the task assigned to it under the Georgia statutes, death considered by the Georgia Supreme Court any which sentences imposed for discriminatory reasons or are truly "similar." If the cases really were "similar" in wantonly or freakishly for any given category of crime relevant respects, it is unlikely that prosecutors would will [**2949] be set aside. Petitioner has wholly failed to fail to prosecute them as capital cases; and I am establish, and has not even attempted to establish, that unwilling to assume the contrary. the Georgia Supreme Court failed properly to perform its Petitioner's argument that there is an unconstitutional task in this case or that it is incapable of performing its [*226] amount of discretion in the system which task adequately in all cases; and this Court should not separates those suspects who receive the death penalty assume that it did not do so. from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be LEdHN Petitioner also argues that decisions made by in final analysis an indictment of our entire [****103] the prosecutor - either in negotiating a plea to some system of justice. Petitioner has argued, in effect, that lesser [****101] offense than capital murder or in simply no matter how effective the death penalty may be as a declining to charge capital murder -- are standardless and will inexorably result in the wanton and freakish punishment, [***904] government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition cases considered by the Georgia Supreme Court are those in of constitutional law. Imposition of the death penalty is which an appeal was taken either from a sentence of death or surely an awesome responsibility for any system of life imprisonment. This view finds no support in the language justice and those who participate in it. Mistakes will be of the relevant statutes. Moore v. State, 233 Ga., at 863-864, made and discriminations will occur which will be 213 S.E. 2d, at 832.

Kyle Smith Page 35 of 41 428 U.S. 153, *226; 96 S. Ct. 2909, **2949; 49 L. Ed. 2d 859, ***904; 1976 U.S. LEXIS 82, ****103 difficult to explain. However, one of society's most basic POWELL, and MR. JUSTICE STEVENS today hold that tasks is that of protecting the lives of its citizens and one "evolving standards of decency" require focus not on the of the most basic ways in which it achieves the task is essence of the death penalty itself but primarily upon through criminal laws against murder. I decline to the procedures employed by the State to single out interfere with the manner in which Georgia has chosen persons to suffer the penalty of death. Those opinions to enforce such laws on what is simply an assertion of hold further that, so viewed, the Clause invalidates the lack of faith in the ability of the system of justice to mandatory infliction of the death penalty but not its operate in a fundamentally fair manner. infliction under sentencing procedures that MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. IV JUSTICE STEVENS conclude adequately safeguard against the risk that the death penalty was imposed in LEdHN For the reasons stated in dissent in Roberts v. an arbitrary and capricious manner. Louisiana, post, at 350-356, neither can I agree with the petitioner's other basic argument that the death penalty, In Furman v. Georgia, 408 U.S. 238, 257 (1972) however imposed and for whatever crime, is cruel and (concurring opinion), I read "evolving standards of unusual punishment. decency" as requiring focus upon the essence of the death penalty itself and not primarily or solely upon the I therefore concur in the [****104] judgment of procedures [*228] under which the determination to affirmance. inflict the penalty upon a particular person was made. [**2950] Statement of THE CHIEF JUSTICE and MR. [****106] I there said: S JUSTICE REHNQUIST: [***905] "From the beginning of our Nation, the We concur in the judgment and join the opinion of MR. punishment of death has stirred acute public JUSTICE WHITE, agreeing with its analysis that controversy. Although pragmatic arguments for and Georgia's system of capital punishment comports with against the punishment have been frequently advanced, [*227] the Court's holding in Furman v. Georgia, 408 this long-standing and heated controversy cannot be U.S. 238 (1972). explained solely as the result of differences over the practical wisdom of a particular government policy. At MR. JUSTICE BLACKMUN, concurring in the judgment. bottom, the battle has been waged on moral grounds. The country has debated whether a society for which LEdHN I concur in the judgment. See Furman v. the dignity of the individual is the supreme value can, Georgia, 408 U.S. 238, 405-414 (1972) (BLACKMUN, without a fundamental inconsistency, follow the practice J., dissenting), and id., at 375 (BURGER, C.J., of deliberately putting some of its members to death. In dissenting); id., at 414 POWELL, J., dissenting); id., at the United States, as in other nations of the western 465 (REHNQUIST, J., dissenting). world, 'the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution Dissent by: BRENNAN; MARSHALL atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the Dissent common man that were born of the democratic movement of the eighteenth century, as well as beliefs MR. JUSTICE BRENNAN, dissenting. * in the scientific approach to an understanding of the motive forces of human conduct, which are the result of The Cruel and Unusual Punishments Clause "must draw the growth of the sciences of behavior during the its meaning from the evolving standards of decency that nineteenth and twentieth [****107] centuries.' It is this mark the progress of a maturing society." 1 The opinions essentially moral conflict that forms the backdrop for the of MR. JUSTICE STEWART, MR. JUSTICE [****105] past changes in and the present operation of our system of imposing death as a punishment for crime." Id., at 296. 2I

* [This opinion applies also to No. 75-5706, Proffitt v. Florida, That continues to be my view. For the Clause post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.]

1 Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion of 2 Quoting T. Sellin, The Death Penalty, A Report for the Model Warren, C.J.). Penal Code Project of the American Law Institute 15 (1959).

Kyle Smith Page 36 of 41 428 U.S. 153, *228; 96 S. Ct. 2909, **2950; 49 L. Ed. 2d 859, ***905; 1976 U.S. LEXIS 82, ****107 forbidding cruel and unusual punishments under our unusual punishment. I perceive no principled basis for constitutional [*229] system of government embodies in this limitation. Death for whatever crime and under all unique degree moral principles restraining the circumstances "is truly an awesome punishment. The punishments that our civilized society may impose on calculated killing of a human being by the State those persons who transgress its laws. Thus, I too say: involves, by its very nature, a denial of the executed "For myself, I do not hesitate to assert the proposition person's humanity…. An executed person has indeed that the only way the law has progressed from the days 'lost the right to have rights.'" Id., at 290. Death is not of the rack, the screw and the wheel is the development only an unusually severe punishment, unusual in its of moral concepts, or, as stated by the Supreme pain, [****110] in its finality, and in its enormity, but it Court… the application of 'evolving standards of serves no penal purpose more effectively than a less decency'…." 3 severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive [****108] This Court inescapably has the duty, as the punishment when less severe punishment can ultimate arbiter of the meaning of our Constitution, to adequately achieve the same purposes invalidates the say whether, when individuals condemned to death punishment. Id., at 279. stand before our Bar, "moral concepts" require us to hold that the law has progressed to the point where we The fatal constitutional infirmity in the punishment of should declare that the punishment of death, like death is that it treats "members of the human race as punishments on the rack, the screw, and the wheel, is nonhumans, as objects to be toyed with and discarded. no longer morally tolerable in our civilized society. 4 My [It is] thus inconsistent with the fundamental premise of opinion in Furman v. Georgia concluded that our the Clause that even the vilest criminal remains a civilization and the law had progressed to this point and human being possessed of common human dignity." Id., that therefore the punishment of death, for whatever at 273. As such it is a penalty that "subjects the crime and under all circumstances, is "cruel and individual to a fate forbidden by the principle of civilized unusual" in violation of the Eighth and Fourteenth treatment guaranteed by the [Clause]." 5 I therefore Amendments of the Constitution. I shall not again would hold, [*231] on that ground alone, that death is canvass the reasons that led to that conclusion. I today a cruel and unusual punishment prohibited by the emphasize only that foremost among the "moral Clause. "Justice of this kind is obviously no less concepts" recognized in [***906] our cases and inherent shocking than the crime itself, and the new 'official' in the Clause is the primary moral principle that the murder, far from offering redress for the offense State, even as it punishes, must treat its citizens in a committed against society, adds instead a second manner consistent with their intrinsic worth as human defilement to the first." 6 beings - a punishment must not be so severe as to be degrading to human dignity. A judicial determination [****111] I dissent from the judgments in No. 74-6257, [*230] whether the punishment of death [****109] Gregg v. Georgia, No. 75-5706, Proffitt v. Florida, and comports with human dignity is therefore not only No. 75-5394, Jurek v. Texas, insofar as each upholds permitted but compelled by the Clause. 408 U.S., at the death sentences challenged in those cases. I would 270. set aside the death sentences imposed in those cases as violative of [***907] the Eighth and Fourteenth I do not understand that the Court disagrees that "[i]n Amendments. comparison to all other punishments today… the * deliberate extinguishment of human life by the State is MR. JUSTICE MARSHALL, dissenting. uniquely degrading to human dignity." Id., at 291. For In Furman v. Georgia, 408 U.S. 238, 314 (1972) three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and

5 Trop v. Dulles, 356 U.S., at 99 (plurality opinion of Warren, C.J.). 3 Novak v. Beto, 453 F. 2d 611, 672 (CA5 1971) (Tuttle, J., concurring in part and dissenting in part). 6 A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub. 1960). 4 Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. * [This opinion applies also to No. 75-5706, Proffitt v. Florida, 722, 736 (1976). post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.]

Kyle Smith Page 37 of 41 428 U.S. 153, *231; 96 S. Ct. 2909, **2950; 49 L. Ed. 2d 859, ***907; 1976 U.S. LEXIS 82, ****111

(concurring opinion), I set forth at some length my views Even assuming, however, that the post-Furman on the basic issue presented to the Court in these enactment of statutes authorizing the death penalty cases. The death penalty, I concluded, is a cruel and renders the prediction of the views of an unusual punishment prohibited by the Eighth and informed [****114] citizenry an [*233] uncertain basis for Fourteenth Amendments. That continues to be my view. a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion I have no intention of retracing the "long and tedious that the death penalty is unconstitutional because it is journey," id., at 370, that led to my conclusion in excessive. An excessive penalty is invalid under the Furman. My sole purposes here are to consider Cruel and Unusual Punishments Clause "even though [****112] the suggestion that my conclusion in Furman popular sentiment [***908] may favor" it. Id., at 331; has been undercut by developments since then, and ante, at 173, 182-183 (opinion of STEWART, POWELL, briefly to evaluate the basis for my Brethren's holding and STEVENS, JJ.); Roberts v. Louisiana, post, at that the extinction of life is a permissible form of 353-354 (WHITE, J., dissenting). The inquiry here, punishment under the Cruel and Unusual Punishments then, is simply whether the death penalty is necessary Clause. to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty -- life In Furman I concluded that the death penalty is imprisonment -- would do as well. Furman, supra, at constitutionally invalid for two reasons. First, the death 342 (MARSHALL, J., concurring). penalty is excessive. Id., at 331-332; 342-359. And [*232] second, the American people, fully informed as The two purposes that sustain the death penalty as to the purposes of the death penalty and its liabilities, nonexcessive in the Court's view are general deterrence would in my view reject it as morally unacceptable. Id., and retribution. In Furman, I canvassed the relevant at 360-369. data on the deterrent effect of capital punishment. 408 U.S., at 347-354. 2 The state of knowledge at that point, Since the decision in Furman, the legislatures of 35 after literally centuries of debate, was summarized as States have enacted new statutes authorizing the follows by a United Nations Committee: S imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty "It is generally agreed between the retentionists [****115] for air piracy resulting in death. 49 U.S.C. §§ 1472(i), and abolitionists, whatever their opinions about the (n) (1970 ed., Supp. IV). I would be less than candid if I validity of comparative studies of deterrence, that the did not acknowledge that these developments have a data which now exist show no correlation between the significant bearing on a realistic assessment of the existence of capital punishment and lower rates of moral acceptability of the death penalty to the American capital crime." 3 I people. But if the constitutionality of the death penalty turns, as [****113] I have urged, on the opinion of an The available evidence, I concluded in Furman, was informed citizenry, then even the enactment of new convincing that "capital punishment is not necessary as death statutes cannot be viewed as conclusive. In a deterrent to crime in our society." Id., at 353. Furman, I observed that the American people are largely unaware of the information critical to a judgment The Solicitor General in his amicus brief in these cases 4 on the morality of the death penalty, and concluded that [*234] relies heavily on a study by Isaac Ehrlich, if they were better informed they would consider it reported a year after Furman, to support the contention shocking, unjust, and unacceptable. 408 U.S., at 360- 369. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the 2 See e.g., T. Sellin, The Death Penalty, A Report for the American people know little about the death penalty, Model Penal Code Project of the American Law Institute and that the opinions of an informed public would differ (1959). significantly from those of a public unaware of the 3 United Nations, Department of Economic and Social Affairs, consequences and effects of the death penalty. 1 Capital Punishment, pt. II, [*] 159, p. 123 (1968). 4 I. Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death (Working Paper No. 18, National 1 Sarat & Vidmar, Public Opinion, The Death Penlaty, and the Bureau of Economic Research, Nov. 1973); Ehrlich, The Eighth Amendment: Testing the Marshall Hypothesis, 1976 Deterrent Effect of Capital Punishment: A Question of Life and Wis. L. Rev. 171. Death, 65 Am. Econ. Rev. 397 (June 1975).

Kyle Smith Page 38 of 41 428 U.S. 153, *234; 96 S. Ct. 2909, **2950; 49 L. Ed. 2d 859, ***908; 1976 U.S. LEXIS 82, ****115 that the death penalty does deter murder. Since the study is defective because it compares execution and Ehrlich study was not available at the time of Furman homicide rates on a nationwide, rather than a state-by- and since it is the first scientific study to suggest that the state, basis. The aggregation of data from all States -- death penalty may have [****116] a deterrent effect, I will including those that have abolished the death penalty -- briefly consider its import. obscures the relationship between murder and execution rates. Under Ehrlich's methodology, a The Ehrlich study focused on the relationship in the decrease in the execution risk in one State combined Nation as a whole between the homicide rate and with an increase in the murder [****118] rate in another "execution risk" -- the fraction of persons convicted of State would, all other things being equal, suggest a murder who were actually executed. Comparing the deterrent effect that quite obviously would not exist. differences in homicide rate and execution risk for the Indeed, a deterrent effect would be suggested if, once years 1933 to 1969, Ehrlich found that increases in again all other things being equal, one State abolished execution risk were associated with increases in the the death penalty and experienced no change in the 5 homicide rate. But when he employed the statistical murder rate, while another State experienced an technique of multiple regression analysis to control for increase in the murder rate. 9 the influence of other variables posited to have an impact on the homicide rate, 6 Ehrlich found a negative [****119] The most compelling criticism of the Ehrlich correlation between changes in the homicide rate and study is [*236] that its conclusions are extremely changes in execution risk. His tentative sensitive to the choice of the time period included in the conclusion [****117] was that for the period from 1933 to regression analysis. Analysis of Ehrlich's data reveals 1967 each additional execution in the [***909] United that all empirical support for the deterrent effect of States might have saved eight lives. 7 capital punishment disappears when the five most recent years are removed from his time series -- that is The methods and conclusions of the Ehrlich study to say, whether a decrease in the execution risk [*235] have been severely criticized on a number of corresponds to an increase or a decrease in the murder grounds. 8 It has been suggested, for example, that the rate depends on the ending point of the sample period. 10 This finding has cast severe doubts on the reliability of Ehrlich's tentative conclusions. 11 Indeed, a recent 5 Id., at 409. regression study, based on Ehrlich's theoretical model but using cross-section state data for the years 1950 6 The variables other than execution risk included probability of arrest, probability of conviction given arrest, national and 1960, found no support for the conclusion that 12 aggregate measures of the percentage of the population executions act as a deterrent. between age 14 and 24, the unemployment rate, the labor force participation rate, and estimated per capita income. [****120] The Ehrlich study, in short, is of little, if any, assistance in assessing the deterrent impact of the 7 Id., at 398, 414. death penalty. Accord, Commonwealth v. O'Neal, --

8 Mass. -- , -- , 339 N.E. 2d 676, 684 (1975). The See Passell & Taylor, The Deterrent Effect of Capital 13 Punishment: Another View (unpublished Columbia University evidence I reviewed in Furman remains convincing, in Discussion Paper 74-7509, Mar. 1975), reproduced in Brief for Petitioner App. E in Jurek v. Texas, O.T. 1975; No. 75-5844; form of the relationship between the homicide rate and the Passell, The Deterrent Effect of the Death Penalty: A explanatory variables. Statistical Test, 28 Stan. L. Rev. 61 (1975); Baldus & Cole, A Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on 9 See Baldus & Cole, supra, at 175-177. the Deterrent Effect of Capital Punishment, 85 Yale L.J. 170 10 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Bowers & Pierce, supra, n. 8, at 197-198. See also Passell Ehrlich's Research on Capital Punishment, 85 Yale L.J. 187 & Taylor, supra, n. 8, at 2-66 - 2-68. (1975); Peck, The Deterrent Effect of Capital Punishment: 11 See Bowers & Pierce, supra, n. 8, at 197-198; Baldus & Ehrlich and His Critics, 85 Yale L.J. 359 (1976). See also Cole, supra, n. 8, at 181, 183-185; Peck, supra, n. 8, at 366- Ehrlich, Deterrence: Evidence and Inference, 85 Yale L.J. 209 367. (1975); Ehrlich, Rejoinder, 85 Yale L.J. 368 (1976). In addition to the items discussed in text, criticism has been directed at 12 Passell, supra, n. 8. the quality of Ehrlich's data, his choice of explanatory variables, his failure to account for the interdependence of 13 See also Bailey, Murder and Capital Punishment: Some those variables, and his assumptions as to the mathematical Further Evidence, 45 Am. J. Orthopsychiatry 669 (1975); W.

Kyle Smith Page 39 of 41 428 U.S. 153, *236; 96 S. Ct. 2909, **2950; 49 L. Ed. 2d 859, ***909; 1976 U.S. LEXIS 82, ****120 my view, that "capital punishment is not [***910] promoting the stability of a society governed [*238] by necessary as a deterrent to crime in our society." 408 law. When people begin to believe that organized U.S., at 353. The justification for the death penalty must society is unwilling or unable to impose upon criminal be found elsewhere. offenders the punishment they 'deserve,' [****123] then there are sown the seeds of anarchy -- of self-help, The other principal purpose said to be served by the vigilante justice, and lynch law.'" Ante, at 183, quoting 14 death penalty is retribution. The notion that retribution from Furman v. Georgia, supra, at 308 (STEWART, J., [*237] can serve as a moral justification for the sanction concurring).I of death finds credence in the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my This statement is wholly inadequate to justify the death Brother WHITE in Roberts v. Louisiana, post, p. 337. penalty. As my Brother BRENNAN stated in Furman, See also Furman v. Georgia, 408 U.S., at 394-395 "[t]here is no evidence whatever that utilization of (BURGER, C.J., [****121] dissenting). It is this notion imprisonment rather than death encourages private that I find to be the most disturbing aspect of today's blood feuds and other disorders." 408 U.S., at 303 unfortunate decisions. (concurring opinion). 16 It simply defies belief to suggest that the death penalty is necessary to prevent The concept of retribution is a multifaceted one, and any [***911] the American people from taking the law into discussion of its role in the criminal law must be their own hands. undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis In a related vein, it may be suggested that the of our insistence that only those who have broken the expression of moral outrage through the imposition of law be punished, and in this sense the notion is quite the death penalty serves to reinforce basic moral values [****122] obviously central to a just system of criminal -- that it marks some crimes as particularly offensive sanctions. But our recognition that retribution plays a and therefore to be avoided. [****124] The argument is crucial role in determining who may be punished by no akin to a deterrence argument, but differs in that it means requires approval of retribution as a general contemplates the individual's shrinking from antisocial justification for punishment. 15 It is the question whether conduct, not because he fears punishment, but because retribution can provide a moral justification for he has been told in the strongest possible way that the punishment - in particular, capital punishment -- that we conduct is wrong. This contention, like the previous must consider. one, provides no support for the death penalty. It is inconceivable that any individual concerned about My Brothers STEWART, POWELL, and STEVENS offer conforming his conduct to what society says is "right" the following explanation of the retributive justification would fail to realize that murder is "wrong" if the penalty for capital punishment: S were simply life imprisonment.

"'The instinct for retribution is part of the nature of man, The foregoing contentions -- that society's expression of and channeling that instinct in the administration of moral outrage through the imposition of the death criminal justice serves an important purpose in penalty pre-empts the citizenry from taking the law into its [*239] own hands and reinforces moral values -- are Bowers, Executions in America 121-163 (1974). not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as 14 In Furman, I considered several additional purposes valuable because of its beneficial results. These arguably served by the death penalty. 408 U.S., at 314, 342, justifications for the death penalty are inadequate 355-358. The only additional purpose mentioned in the because the penalty is, quite clearly I think, not opinions in these cases is specific deterrence -- preventing the necessary to the accomplishment of those results. murderer from committing another crime. Surely life imprisonment and, if necessary, solitary confinement would There remains for consideration, however, what might fully accomplish this purpose. Accord, Commonwealth v. be termed the purely retributive justification for the O'Neal, -- Mass. -- , -- , 339 N.E. 2d 676, 685 (1975); People v. Anderson, 6 Cal. 3d 628, 651, 493 P. 2d 880, 896, cert. death [****125] penalty - that the death penalty is denied, 406 U.S. 958 (1972).

15 See, e.g., H. Hart, Punishment and Responsibility 8-10, 71- 83 (1968); H. Packer, Limits of the Criminal Sanction 38-39, 16 See Commonwealth v. O'Neal, supra, at -- , 339 N.E. 2d, at 66 (1968). 687; Bowers, supra, n. 13, at 135; Sellin, supra, n. 2, at 79.

Kyle Smith Page 40 of 41 428 U.S. 153, *239; 96 S. Ct. 2909, **2950; 49 L. Ed. 2d 859, ***911; 1976 U.S. LEXIS 82, ****125 appropriate, not because of its beneficial effect on life in return for the evil he has done cannot sustain the society, but because the taking of the murderer's life is death penalty, for as Justice Stewart, Powell, and itself morally good. 17 Some of the language of the Stevens remind us, "the Eighth Amendment demands opinion of my Brothers STEWART, POWELL, and more than that a challenged punishment be acceptable STEVENS in No. 74-6257 appears positively to to contemporary society." Ante, at 182. To be embrace this notion of retribution for its own sake as a sustained under the Eighth Amendment, the death justification for capital punishment. 18 They state: S penalty must "compor[t] with the basic concept of human dignity at the core of the Amendment," ibid.; the "[The] decision that capital punishment may be the objective in imposing it must be "[consistent] [****127] appropriate sanction in extreme cases is an expression with our respect for the dignity of [other] men." Ante, at of the community's belief that certain crimes are 183. See Trop v. Dulles, 356 U.S. 86, 100 (1958) themselves so grievous an affront to humanity that the (plurality opinion). Under these standards, the taking of only adequate response may be the penalty of death." life "because the wrongdoer deserves it" surely must Ante, at 184 (footnote omitted).I [*241] fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth. 19 [*240] They then quote with approval from Lord Justice Denning's remarks before the British Royal Commission The death penalty, unnecessary to promote the goal of on Capital Punishment: S deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the "'The truth is that some crimes are so outrageous that Eighth and Fourteenth Amendments. I respectfully society insists on adequate punishment, because the dissent from the Court's judgment upholding the wrong-doer deserves it, irrespective of whether it is a sentences of death imposed upon the petitioners in deterrent or not.'" Ante, at 184 n. 30.I these cases.

[****126] Of course, it may be that these statements are intended as no more than observations as to the References popular [***912] demands that it is thought must be responded to in order to prevent anarchy. But the 21 Am Jur 2d, Criminal Law 613 implication of the statements appears to me to be quite different -- namely, that society's judgment that the USCS, Constitution, 8th and 14th Amendments murderer "deserves" death must be respected not simply because the preservation of order requires it, but US [****128] L Ed Digest, Criminal Law 82, 83 because it is appropriate that society make the judgment and carry it out. It is this latter notion, in ALR Digests, Criminal Law 181 particular, that I consider to be fundamentally at odds with the Eighth Amendment. See Furman v. Georgia, L Ed Index to Annos, Criminal Law; Cruel and Unusual 408 U.S., at 343-345 (MARSHALL, J., concurring). The Punishment mere fact that the community demands the murderer's ALR Quick Index, Capital Cases; Cruel and Unusual Punishment 17 See Hart, supra, n. 15, at 72, 74-75, 234-235; Packer, supra, n. 15, at 37-39. Federal Quick Index, Capital Punishment; Cruel and Unusual Punishment 18 MR. JUSTICE WHITE'S view of retribution as a justification for the death penalty is not altogether clear. "The widespread Annotation References: reenactment of the death penalty," he states at one point, "answers any claims that life imprisonment is adequate The federal constitutional guaranty against cruel and punishment to satisfy the need for reprobation or retribution." unusual punishment. 33 L Ed 2d 932. Roberts v. Louisiana, post, at 354. (WHITE, J., dissenting). But MR. JUSTICE WHITE later states: "It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition 19 See Commonwealth v. O'Neal, supra, at 236, 339 N.E. 2d, of the death penalty will save the lives of innocent persons." at 687; People v. Anderson, 6 Cal. 3d, at 651, 493 P. 2d, at Post, at 355. 896.

Kyle Smith Page 41 of 41 428 U.S. 153, *241; 96 S. Ct. 2909, **2950; 49 L. Ed. 2d 859, ***912; 1976 U.S. LEXIS 82, ****128

Effect of abolition of capital punishment on procedural rules governing crimes punishable by death--post- Furman decisions. 71 ALR3d 453.

Binding effect upon state courts of opinion of United States Supreme Court supported by less than a majority of all its members. 65 ALR3d 504.

Manner of inflicting death sentence as cruel or unusual punishment. 30 ALR 1452.

End of Document

Kyle Smith Caution As of: December 12, 2016 9:03 PM EST

Roper v. Simmons

Supreme Court of the United States October 13, 2004, Argued ; March 1, 2005, Decided No. 03-633

Reporter 543 U.S. 551 *; 125 S. Ct. 1183 **; 161 L. Ed. 2d 1 ***; 2005 U.S. LEXIS 2200 ****; 73 U.S.L.W. 4153; 18 Fla. L. Weekly Fed. S 131 by the enactments of legislatures that had addressed DONALD P. ROPER, SUPERINTENDENT, POTOSI the question. Thirty states had prohibited the juvenile CORRECTIONAL CENTER, Petitioner v. death penalty: 12 that had rejected the death penalty CHRISTOPHER SIMMONS altogether and 18 that had maintained it but, by express provision or judicial interpretation, excluded juveniles Prior History: [****1] ON WRIT OF CERTIORARI TO from its reach. The Court noted that even in the 20 THE SUPREME COURT OF MISSOURI. states without a formal prohibition on executing juveniles, the practice was infrequent. The Court held that this provided sufficient evidence that American State ex rel. Simmons v. Roper, 112 S.W.3d 397, 2003 society viewed juveniles as categorically less culpable Mo. LEXIS 123 (Mo., 2003) than the average criminal and went on to provide three reasons: (1) the lack of maturity and an underdeveloped Disposition: Affirmed. sense of responsibility were found in youth more often than in adults and were more understandable among Core Terms the young; (2) juveniles were more vulnerable or death penalty, juveniles, offenders, capital punishment, susceptible to negative influences and outside mentally retarded, adults, murder, maturity, youth, pressures, including peer pressure; and (3) the plurality opinion, executions, minimum age, culpability, character of a juvenile was not as well formed as that of sentencing, cases, juvenile offender, proportionality, an adult. The Court held that the Eighth Amendment decisions, juries, Rights, legislatures, categorical, forbids the imposition of the death penalty on juvenile mitigating, countries, decency, death sentence, offenders under 18. individuals, views, objective evidence, jurors Outcome Case Summary The judgment setting aside the sentence of death imposed upon the respondent was affirmed.

Procedural Posture LexisNexis® Headnotes Respondent juvenile committed murder at the age of 17. He was tried and sentenced to death. He filed a petition for state postconviction relief, arguing that the reasoning Constitutional Law > Bill of Rights > Fundamental Rights > Cruel & Unusual Punishment forbidding the execution of mentally retarded persons established that U.S. Const. amend. VIII also prohibited HN1 See U.S. Const. amend. VIII. the execution of a juvenile who was under 18 when the crime was committed. The Missouri Supreme Court Constitutional Law > Bill of Rights > Fundamental agreed. Certiorari was granted. Rights > Cruel & Unusual Punishment

Overview Constitutional Law > Bill of Rights > State Application The Court began with a review of objective indicia of consensus on juvenile capital punishment, as expressed HN2 The Eighth Amendment is applicable to the states through the Fourteenth Amendment.

Kyle Smith Page 2 of 47 543 U.S. 551, *551; 125 S. Ct. 1183, **1183; 161 L. Ed. 2d 1, ***1; 2005 U.S. LEXIS 2200, ****1

Constitutional Law > Bill of Rights > Fundamental Criminal Law & Procedure > Juvenile Rights > Cruel & Unusual Punishment Offenders > Sentencing > Capital Punishment Criminal Law & Procedure > Sentencing > Cruel & Unusual Criminal Law & Procedure > Sentencing > Capital Punishment Punishment > General Overview Criminal Law & Procedure > Sentencing > Capital HN3 The Eighth Amendment guarantees individuals the Punishment > Aggravating Circumstances right not to be subjected to excessive sanctions. The right flows from the basic precept of justice that Criminal Law & Procedure > Sentencing > Capital punishment for crime should be graduated and Punishment > Cruel & Unusual Punishment proportioned to the offense. By protecting even those Criminal Law & Procedure > Sentencing > Capital convicted of heinous crimes, the Eighth Amendment Punishment > Mental Retardation reaffirms the duty of the government to respect the Criminal Law & Procedure > Sentencing > Capital dignity of all persons. Punishment > Mitigating Circumstances

Constitutional Law > Bill of Rights > Fundamental HN6 Because the death penalty is the most severe Rights > Cruel & Unusual Punishment punishment, the Eighth Amendment applies to it with Criminal Law & Procedure > Sentencing > Cruel & Unusual special force. Capital punishment must be limited to Punishment those offenders who commit a narrow category of the Governments > Courts > Judicial Precedent most serious crimes and whose extreme culpability makes them the most deserving of execution. This HN4 The prohibition against cruel and unusual principle is implemented throughout the capital punishments in the Eighth Amendment, like other sentencing process. States must give narrow and expansive language in the Constitution, must be precise definition to the aggravating factors that can interpreted according to its text, by considering history, result in a capital sentence. In any capital case a tradition, and precedent, and with due regard for its defendant has wide latitude to raise as a mitigating purpose and function in the constitutional design. To factor any aspect of his or her character or record and implement this framework the United States Supreme any of the circumstances of the offense that the Court has established the propriety and has affirmed the defendant proffers as a basis for a sentence less than necessity of referring to the evolving standards of death. There are a number of crimes that beyond decency that mark the progress of a maturing society to question are severe in absolute terms, yet the death determine which punishments are so disproportionate penalty may not be imposed for their commission. The as to be cruel and unusual. death penalty may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and Constitutional Law > Bill of Rights > Fundamental the mentally retarded, no matter how heinous the crime. Rights > Cruel & Unusual Punishment These rules vindicate the underlying principle that the Criminal Law & Procedure > Juvenile death penalty is reserved for a narrow category of Offenders > Sentencing > Capital Punishment crimes and offenders.

Criminal Law & Procedure > Sentencing > Capital Criminal Law & Procedure > Juvenile Punishment > General Overview Offenders > Sentencing > Capital Punishment Criminal Law & Procedure > Sentencing > Capital Punishment > Cruel & Unusual Punishment HN7 Stanford v. Kentucky, 492 U.S. 361 (1989), should be deemed no longer controlling on the issue of juvenile HN5 A majority of states have rejected the imposition of capital punishment. the death penalty on juvenile offenders under 18, and the United States Supreme Court holds this is required Constitutional Law > Bill of Rights > Fundamental by the Eighth Amendment. Rights > Cruel & Unusual Punishment Criminal Law & Procedure > Juvenile Constitutional Law > Bill of Rights > Fundamental Offenders > Sentencing > Capital Punishment Rights > Cruel & Unusual Punishment Criminal Law & Procedure > Sentencing > Capital Criminal Law & Procedure > ... > Murder > Capital Punishment > Cruel & Unusual Punishment Murder > Penalties Criminal Law & Procedure > Sentencing > Cruel & Unusual

Kyle Smith Page 3 of 47 543 U.S. 551, *551; 125 S. Ct. 1183, **1183; 161 L. Ed. 2d 1, ***1; 2005 U.S. LEXIS 2200, ****1

Punishment accused's argument, (1) set aside the accused's death International Law > Individuals & Sovereign sentence, and (2) resentenced him to life imprisonment States > Human Rights > General Overview without eligibility for release ( 112 S.W.3d 397).

HN8 The United States Supreme Court has referred to [***2] On certiorari, the United States Supreme Court the laws of other countries and to international affirmed. In an opinion by Kennedy, J., joined by authorities as instructive for its interpretation of the Stevens, Souter, Ginsburg, and Breyer, JJ., it was held Eighth Amendment's prohibition of cruel and unusual that the Eighth Amendment proscription against cruel punishments. and unusual punishment prohibited imposition of the death penalty for crimes committed when offenders Lawyers' Edition Display were under 18 years of age, as: (1) The evidence of national consensus against the Decision death penalty for juveniles was similar, and in some respects parallel, to the evidence held sufficient in [***1] Federal Constitution's Eighth Amendment Atkins to demonstrate a national consensus against the proscription of cruel and unusual punishment held to death penalty for offenders who were mentally retarded. prohibit imposition of death penalty for crimes committed when offenders were under age of 18 years. (2) When enacting the Federal Death Penalty Act (18 U.S.C.S. § 3591) in 1994, Congress had determined Summary that the death penalty should not extend to juveniles.

In Stanford v Kentucky (1989) 492 U.S. 361, 106 L. Ed. (3) As in Atkins, the objective indicia of consensus in the 2d 306, 109 S. Ct. 2969, reh den 492 U.S. 937, 106 L. instant case provided sufficient evidence that society Ed. 2d 635, 110 S. Ct. 23, the United States Supreme presently viewed juveniles as categorically less culpable Court held that imposition of the death penalty on than the average criminal. offenders for murders committed at 16 and 17 years of age did not constitute cruel and unusual punishment in (4) General maturity-related differences between violation of the Federal Constitution's Eighth juveniles under 18 and adults demonstrated that Amendment. juvenile offenders could not with reliability be classified among the worst offenders. After an accused had reached the age of 18 years, he was convicted in a Missouri state court of murder, and (5) The reasoning applied by a plurality of the court was sentenced to death, for a homicide committed when concerning the immaturity of people under the age of 16 he was aged 17. The Missouri Supreme Court affirmed in Thompson v Oklahoma (1988) 487 U.S. 815, 101 L. ( 944 S.W.2d 165, cert den 522 U.S. 953, 139 L. Ed. 2d Ed. 2d 702, 108 S. Ct. 2687--where the court had held 293, 118 S. Ct. 376), and the United States Court of that the Eighth Amendment prohibited imposition of the Appeals for the Eighth Circuit denied the accused's death penalty for offenses committed when offenders petition for a writ of habeas corpus ( 235 F.3d 1124, cert were under 16--applied to all offenders under 18. den 534 U.S. 924, 151 L. Ed. 2d 206, 122 S. Ct. 280). (6) Once the diminished culpability of juveniles was Subsequently, the United States Supreme Court, in recognized, it was evident that the penological Atkins v Virginia (2002) 536 U.S. 304, 153 L. Ed. 2d justifications (restitution and deterrence) for the death 335, 122 S. Ct. 2242, held that the execution of penalty applied to juveniles with lesser force than to offenders who were mentally retarded constituted cruel adults. and unusual punishment in violation of the Eighth Amendment. (7) The age of 18 was the point where, for many purposes, society drew the line between childhood and The accused filed a new petition for state postconviction adulthood. relief, arguing that the reasoning of Atkins established that the Constitution prohibited execution of an offender (8) The United States was the only country in the world for a crime committed when the offender was under 18. that continued to give official sanction to the juvenile The Supreme Court of Missouri, agreeing with the death penalty.

Kyle Smith Page 4 of 47 543 U.S. 551, *551; 125 S. Ct. 1183, **1183; 161 L. Ed. 2d 1, ***2; 2005 U.S. LEXIS 2200, ****1

Stevens, J., joined by Ginsburg, J., concurring, as: expressed the view that perhaps even more important than the Supreme Court's specific holding was the (1) The evidence of national consensus against the court's reaffirmation of the basic principle that evolving death penalty for juveniles was similar, and in some standards of decency informed the court's interpretation respects parallel, to the evidence held sufficient in of the Eighth Amendment. Atkins v Virginia (2002) 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242--in which the United States O'Connor, J., dissenting, expressed the view that (1) Supreme Court had held that the execution of offenders the court's decision was not justified by (a) the objective who were mentally retarded violated the Eighth evidence of contemporary societal values, (b) the court's Amendment--to demonstrate a national consensus moral proportionality analysis, or (c) the two in tandem; against the death penalty for the mentally retarded, for: (2) the evidence before the court failed to demonstrate conclusively that any national consensus against capital (A) Similarly to Atkins, in the instant case, 30 states punishment of 17-year-old offenders had emerged in the prohibited the juvenile death penalty, comprising (i) 12 brief period since the court had upheld the that had rejected the death penalty altogether, and (ii) constitutionality of this practice in Stanford; (3) the court 18 that maintained it but, by express provision or by had adduced no evidence impeaching the seemingly judicial interpretation, excluded juveniles from its reach. reasonable conclusion reached by many state legislatures that at least some 17-year-old murderers (b) Also similarly to Atkins, in the instant case, even in were sufficiently mature to deserve the death penalty in the 20 states without a formal prohibition on executing an appropriate case; and (4) it had not been shown that juveniles, the practice was infrequent. capital sentencing juries were incapable of accurately assessing a youthful defendant's maturity or of giving (c) Though less dramatic than the change from a prior due weight to the mitigating characteristics associated contrary decision to Atkins, the change from Stanford v with youth. Kentucky (1989) 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969--in which the court had held that imposition [***3] Scalia, J., joined by Rehnquist, Ch. J., and of the death penalty on offenders for murders committed Thomas, J., dissenting, expressed the view that (1) the at 16 and 17 years of age did not violate the Eighth court had (a) proclaimed itself sole arbiter of the nation's Amendment--to the instant case was significant, for the moral standards, and (b) in the course of discharging same consistency of direction of change had been that responsibility, had purported to take guidance from demonstrated, where since Stanford, no state that the views of foreign courts and legislatures; and (2) the previously had prohibited capital punishment for meaning of the Eighth Amendment, no more than the juveniles had reinstated it. meaning of other provisions of the Constitution, ought not to be determined by the subjective views of (a) five (2) When enacting the Federal Death Penalty Act (18 members of the Supreme Court, and (b) like-minded U.S.C.S. § 3591) in 1994, Congress had determined foreigners. that the death penalty should not extend to juveniles.

Headnotes (3) As in Atkins, the objective indicia of consensus in the instant case--(a) the rejection of death penalty for offenders under 18 in the majority of states; (b) the CRIMINAL LAW §93.3 > -- Eighth Amendment -- death infrequency of its use even where it remained on the penalty -- crime committed when offender was under age of 18 books; and (c) the consistency in the trend toward -- national consensus > Headnote: abolition of the practice--provided sufficient evidence LEdHN[1A] [1A]LEdHN[1B] [1B]LEdHN[1C] that society presently viewed juveniles as categorically [1C]LEdHN[1D] [1D]LEdHN[1E] [1E]LEdHN[1F] less culpable than the average criminal. [1F]LEdHN[1G] [1G]LEdHN[1H] [1H]LEdHN[1I] [1I]LEdHN[1J] [1J]LEdHN[1K] [1K] (4) General maturity-related differences between juveniles under 18 and adults demonstrated that The Federal Constitution's Eighth Amendment juvenile offenders could not with reliability be classified proscription against cruel and unusual punishment among the worst offenders. prohibited imposition of the death penalty for crimes committed when offenders were under 18 years of age, (5) The reasoning applied by a plurality of the court

Kyle Smith Page 5 of 47 543 U.S. 551, *551; 125 S. Ct. 1183, **1183; 161 L. Ed. 2d 1, ***3; 2005 U.S. LEXIS 2200, ****1 concerning the immaturity of people under the age of 16 Constitution, must be interpreted according to the in Thompson v Oklahoma (1988) 487 U.S. 815, 101 L. prohibition's text, (1) by considering history, tradition, Ed. 2d 702, 108 S. Ct. 2687--where the court had held and precedent; and (2) with due regard for the that the Eighth Amendment prohibited imposition of the prohibition's purpose and function in the constitutional death penalty for offenses committed when the design. To implement this framework, the United States offenders were under 16--applied to all offenders under Supreme Court has established the propriety, and 18. affirmed the necessity, of referring to the evolving standards of decency that mark the progress of a (6) Once the diminished culpability of juveniles was maturing society to determine which punishments are so recognized, it was evident that the penological disproportionate as to be cruel and unusual. (Kennedy, justifications (restitution and deterrence) for the death J., joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) penalty applied to juveniles with lesser force than to adults. The differences between juvenile and adult EVIDENCE §980 > -- juvenile death penalty -- force of offenders were too marked and too well understood to general trend > Headnote: risk allowing a youthful person to receive the death LEdHN[4] [4] penalty despite insufficient culpability. For purposes of determining whether the Federal (7) The age of 18 was the point where, for many Constitution's Eighth Amendment proscription against purposes, society drew the line between childhood and cruel and unusual punishment prohibited imposition of adulthood. the death penalty for crimes committed when offenders were under 18 years of age, the fact that since the (8) The United States was the only country in the world United States Supreme Court's decision in Stanford v that continued to give official sanction to the juvenile Kentucky (1989) 492 U.S. 361, 106 L. Ed. 2d 306, 109 death penalty. S. Ct. 2969--that imposition of the death penalty on offenders for murders committed at 16 and 17 years of (Kennedy, J., joined by Stevens, Souter, Ginsburg, and age did not violate the Eighth Amendment--no state that Breyer, JJ.) previously had prohibited capital punishment for juveniles had reinstated it, coupled with the trend toward CRIMINAL LAW §77 > -- cruel and unusual punishment -- abolition of the juvenile death penalty, carried special states > Headnote: force in light of (1) the general popularity of anticrime LEdHN[2] [2] legislation; and (2) the particular trend in recent years toward cracking down on juvenile crime in other The Federal Constitution's Eighth Amendment provision respects. Thus, any difference between the instant that excessive bail shall not be required, nor excessive case and Atkins v Virginia (2002) 536 U.S. 304, 153 L. fines imposed, nor cruel and unusual punishments Ed. 2d 335, 122 S. Ct. 2242--in which the Supreme inflicted is applicable to the states through the Court had held that the execution of offenders who were Fourteenth Amendment. (Kennedy, J., joined by mentally retarded violated the Eighth Amendment--with Stevens, Souter, Ginsburg, and Breyer, JJ.) respect to the pace of abolition was counterbalanced by the consistent direction of the change. (Kennedy, J., CRIMINAL LAW §76 > -- -- excessive punishment -- evolving joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) standards > Headnote: LEdHN[3A] [3A]LEdHN[3B] [3B] CRIMINAL LAW §93 > -- death penalty -- > Headnote: LEdHN[5] [5] The Federal Constitution's Eighth Amendment guarantee to individuals of the right not to be subjected Because the death penalty is the most severe to excessive sanctions flows from the basic precept of punishment, the Federal Constitution's Eighth justice that punishment for crime should be graduated Amendment prohibition of cruel and unusual and proportioned to the offense. By protecting even punishment applies to the death penalty with special those convicted of heinous crimes, the Eighth force. Capital punishment must be limited to those Amendment reaffirms the duty of the government to offenders (1) who commit a narrow category of the most respect the dignity of all persons. The Eighth serious crimes; and (2) whose extreme culpability Amendment's prohibition against cruel and unusual makes them the most deserving of execution. punishments, like other expansive language in the (Kennedy, J., joined by Stevens, Souter, Ginsburg, and

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Breyer, JJ.) the death penalty for crimes committed when offenders were under 18 years of age: CRIMINAL LAW §93.7 > -- death penalty -- aggravating and mitigating factors > Headnote: (1) Three general differences between juveniles under LEdHN[6] [6] 18 and adults demonstrated that juvenile offenders could not with reliability be classified among the worst Under the Federal Constitution's Eighth Amendment offenders: prohibition of cruel and unusual punishment, states must give narrow and precise definition to the (a) As any parent knew, and some scientific and aggravating factors that can result in a capital sentence. sociological studies tended to confirm, a lack of maturity Also, in any capital case, a defendant has wide latitude and an underdeveloped sense of responsibility were (i) to raise as a mitigating factor (1) any aspect of his or her found in youth more often than in adults; and (ii) more character or record; and (2) any of the circumstances of understandable among the young. These qualities often the offense that the defendant proffers as a basis for a resulted in impetuous and ill-considered actions and sentence less than death. (Kennedy, J., joined by decisions. It had been noted that adolescents were Stevens, Souter, Ginsburg, and Breyer, JJ.) overrepresented statistically in virtually every category of reckless behavior. In recognition of the comparative CRIMINAL LAW §93.3 > -- death penalty -- severe crimes -- immaturity and irresponsibility of juveniles, almost every > Headnote: state prohibited those under 18 years of age from LEdHN[7] [7] voting, serving on juries, or marrying without parental consent. There are a number of crimes--such as (1) rape of an adult woman; and (2) felony murder where defendant (b) Juveniles were more vulnerable or susceptible to did not (a) kill, (b) attempt to kill, or (c) intend to kill--that negative influences and outside pressures, including beyond question are severe in absolute terms, yet under peer pressure, than were adults. This was explained in the Federal Constitution's Eighth Amendment prohibition part by the prevailing circumstance that juveniles had of cruel and unusual punishment, the death penalty may less control, or less experience with control, over their not be imposed for those crimes' commission. own environment. (Kennedy, J., joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) (c) The character of a juvenile was not as well formed as that of an adult. The personality traits of juveniles CRIMINAL LAW §93 > CRIMINAL LAW §93.3 > -- death were more transitory, less fixed. penalty -- crimes and offenders > Headnote: LEdHN[8] [8] (2) These differences rendered suspect any conclusion that a juvenile fell among the worst offenders. The Under the Federal Constitution's Eighth Amendment susceptibility of juveniles to immature and irresponsible prohibition of cruel and unusual punishment, the death behavior meant that their irresponsible conduct was not penalty may not be imposed on certain classes of as morally reprehensible as that of an adult. Juveniles' offenders--such as (1) juveniles under 16 years of age, vulnerability and comparative lack of control over their (2) the insane, and (3) the mentally retarded--no matter immediate surroundings meant that juveniles had a how heinous the crime. These rules vindicate the greater claim than adults to be forgiven for failing to underlying principle that the death penalty is reserved escape negative influences in their whole environment. for a narrow category of crimes and offenders. The reality that juveniles still struggled to define their (Kennedy, J., joined by Stevens, Souter, Ginsburg, and identity meant that it was less supportable to conclude Breyer, JJ.) that even a heinous crime committed by a juvenile was evidence of irretrievably depraved character. From a CRIMINAL LAW §93.3 > -- death penalty -- juveniles under moral standpoint, it would be misguided to equate the age of 18 -- > Headnote: failings of a minor with those of an adult, for a greater LEdHN[9A] [9A]LEdHN[9B] [9B] possibility existed that a minor's character deficiencies would be reformed. For purposes of determining whether the Federal Constitution's Eighth Amendment proscription against (Kennedy, J., joined by Stevens, Souter, Ginsburg, and cruel and unusual punishment prohibited imposition of Breyer, JJ.)

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CRIMINAL LAW §93.3 > -- death penalty -- juveniles under CRIMINAL LAW §93.7 > -- death penalty -- circumstances -- age of 18 -- retribution -- deterrence > Headnote: youth of offender > Headnote: LEdHN[10A] [10A]LEdHN[10B] [10B] LEdHN[12] [12]

For purposes of determining whether the Federal A central feature of death-penalty sentencing is a Constitution's Eighth Amendment proscription against particular assessment of the (1) circumstances of the cruel and unusual punishment prohibited imposition of crime, and (2) characteristics of the offender. The the death penalty for crimes committed when offenders system is designed to consider both aggravating and were under 18 years of age, where the United States mitigating circumstances, including youth, in every case. Supreme Court had held in Atkins v Virginia (2002) 536 (Kennedy, J., joined by Stevens, Souter, Ginsburg, and U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242, that there Breyer, JJ.) were two distinct social purposes-- retribution and deterrence of capital crimes by prospective offenders-- CRIMINAL LAW §93.3 > CRIMINAL LAW §93.7 > -- death served by the death penalty: penalty -- mitigating arguments -- youthful offender > Headnote: (1) As for retribution, (a) the court had remarked in LEdHN[13A] [13A]LEdHN[13B] [13B] Atkins that if the culpability of the average murderer was insufficient to justify the most extreme sanction available For purposes of determining whether the Federal to the state, then the lesser culpability of the mentally Constitution's Eighth Amendment proscription against retarded offender did not merit that form of retribution; cruel and unusual punishment prohibited imposition of and (b) the same conclusions followed from the lesser the death penalty for crimes committed when offenders culpability of the juvenile offender, as (i) whether viewed were under 18 years of age, the differences between as an attempt to express the community's moral outrage juvenile and adult offenders were too marked and too or as an attempt to right the balance for the wrong to the well understood to risk allowing a youthful person to victim, the case for retribution was not as strong with a receive the death penalty despite insufficient culpability, minor as with an adult, and (ii) retribution was not as: proportional if the law's most severe penalty was imposed on one whose culpability or blameworthiness (1) An unacceptable likelihood existed that the brutality was diminished to a substantial degree by reason of or cold-blooded nature of any particular crime would youth and immaturity. overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's (2) As for deterrence, (a) it was unclear whether the objective immaturity, vulnerability, and lack of true death penalty had a significant, or even measurable, depravity should require a sentence less severe than deterrent effect on juveniles; (b) the absence of death, for in some cases a defendant's youth might evidence of deterrent effect was of special concern, even be counted against the defendant, where, for because the same characteristics that rendered example, in the instant death-penalty case, the juveniles less culpable than adults suggested as well prosecutor had argued that the youth of the defendant, that juveniles would be less susceptible to deterrence; who was 17 years old when he had committed the and (c) to the extent that the juvenile death penalty homicide in question, was aggravating rather than might have residual deterrent effect, the punishment of mitigating. life imprisonment without the possibility of parole was a severe sanction, in particular for a young person. (2) While this sort of overreaching could be corrected by a particular rule to insure that the mitigating force of (Kennedy, J., joined by Stevens, Souter, Ginsburg, and youth was not overlooked, that would not address the Breyer, JJ.) court's larger concerns, for (a) it was difficult even for expert psychologists to differentiate between (i) the CRIMINAL LAW §69 > -- penalty schemes > Headnote: juvenile offender whose crime reflected unfortunate yet LEdHN[11] [11] transient immaturity, and (ii) the rare juvenile offender whose crime reflected irreparable corruption; (b) the In general, the United States Supreme Court leaves to court understood this difficulty to underlie the rule legislatures the assessment of the efficacy of various forbidding psychiatrists from diagnosing any patient criminal penalty schemes. (Kennedy, J., joined by under 18 as having antisocial personality disorder; and Stevens, Souter, Ginsburg, and Breyer, JJ.) (c) states ought to refrain from asking jurors to issue the

Kyle Smith Page 8 of 47 543 U.S. 551, *551; 125 S. Ct. 1183, **1183; 161 L. Ed. 2d 1, ***3; 2005 U.S. LEXIS 2200, ****1 far graver condemnation that a juvenile offender merited United Kingdom had abolished the juvenile death the death penalty. penalty before these covenants came into being. The United Kingdom's experience bore particular relevance (Kennedy, J., joined by Stevens, Souter, Ginsburg, and to the Eighth Amendment question, in light of (1) the Breyer, JJ.) historic ties between the United Kingdom and the United States; and (2) the Eighth Amendment's origins, as the CRIMINAL LAW §93.3 > -- juvenile death penalty -- -- weight amendment was modeled on a parallel provision in the of international opinion > Headnote: English Declaration of Rights of 1689. In the 56 years LEdHN[14A] [14A]LEdHN[14B] [14B] that had passed since the United Kingdom had abolished the juvenile death penalty, the weight of For purposes of determining whether the Federal authority against it there, and in the international Constitution's Eighth Amendment proscription against community, had become well established. (Kennedy, J., cruel and unusual punishment prohibited imposition of joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) the death penalty for crimes committed when offenders were under 18 years of age, the reality that the United Syllabus States was the only country in the world that continued to give official sanction to the juvenile death penalty did not become controlling, for the task of interpreting the At age 17, respondent Simmons planned and committed Eighth Amendment remained the United States a capital murder. After he had turned 18, he was Supreme Court's responsibility. However, it was proper sentenced to death. His direct appeal and subsequent that the court acknowledge the overwhelming weight of petitions for state and federal postconviction relief were international opinion against the juvenile death penalty, rejected. This Court then held, in Atkins v. Virginia, 536 resting in large part on the understanding that the U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242, that the instability and emotional imbalance of young people Eighth Amendment, applicable to the States through the might often be a factor in the crime in question, where, Fourteenth Amendment [****2] , prohibits the execution at least from the time of the court's decision in Trop v of a mentally retarded person. Simmons filed a new Dulles (1958) 356 U.S. 86, 2 L. Ed. 2d 630, 78 S. Ct. petition for state postconviction relief, arguing that 590, the court had referred to the laws of other countries Atkins' reasoning established that the Constitution prohibits the execution of a juvenile who was under 18 and to international authorities as instructive for its when he committed his crime. The Missouri Supreme interpretation of the Eighth Amendment's prohibition of Court agreed and set aside Simmons' death sentence in cruel and unusual punishments. Thus, the opinion of favor of life imprisonment without eligibility for release. the world community, while not controlling the court's It held that, although Stanford v. Kentucky, 492 U.S. outcome, provided respected and significant 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969, rejected the confirmation for the court's conclusions. It did not proposition that the Constitution bars capital punishment lessen the court's fidelity to the Constitution, or the for juvenile offenders younger than 18, a national court's pride in the Constitution's origins, to consensus has developed against the execution of acknowledge that the express affirmation of certain those offenders since Stanford. fundamental rights by other nations and peoples simply underscored the centrality of those same rights within Held: the United States' heritage of freedom. (Kennedy, J., joined by Stevens, Souter, Ginsburg, and Breyer, JJ.) The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were CRIMINAL LAW §93.3 > -- juvenile death penalty -- relevance under the age of 18 when their crimes were committed. of United Kingdom's experience > Headnote: LEdHN[15] [15] (a) The Eighth Amendment's prohibition against "cruel and unusual punishments" must be interpreted For purposes of determining whether the Federal according to its text, by considering history, tradition, Constitution's Eighth Amendment proscription against and precedent, and with due regard for its purpose and cruel and unusual punishment prohibited imposition of function in the constitutional design. To implement this the death penalty for crimes committed when offenders framework this Court has established the were under 18 years of age, although the international propriety [****3] and affirmed the necessity of referring to covenants prohibiting the juvenile death penalty were of "the evolving standards of decency that mark the more recent date, it was instructive to note that the progress of a maturing society" to determine which

Kyle Smith Page 9 of 47 543 U.S. 551, *551; 125 S. Ct. 1183, **1183; 161 L. Ed. 2d 1, ***3; 2005 U.S. LEXIS 2200, ****3 punishments are so disproportionate as to be "cruel and Ct. 2242. Just as the Atkins Court reconsidered the unusual." Trop v. Dulles, 356 U.S. 86, 100-101, 2 L. Ed. issue decided in Penry, the Court now reconsiders the 2d 630, 78 S. Ct. 590. In 1988, in Thompson v. issue decided in Stanford. Oklahoma, 487 U.S. 815, 818-838, 101 L. Ed. 2d 702, 108 S. Ct. 2687, a plurality determined that national (b) Both objective indicia of consensus, as expressed in standards of decency did not permit the execution of particular by the enactments of legislatures that have any offender under age 16 at the time of the crime. The addressed the question, and the Court's own next year, in Stanford, a 5-to-4 Court referred to determination in the exercise of its independent contemporary standards of decency, but concluded the judgment, demonstrate that the death penalty is a Eighth and Fourteenth Amendments did not proscribe disproportionate punishment for juveniles. the execution of offenders over 15 but under 18 because 22 of 37 death penalty States permitted that (1) As in Atkins, the objective indicia of national penalty for 16-year-old offenders, and 25 permitted it for consensus here--the rejection of the juvenile [****6] 17-year-olds, thereby indicating there was no national death penalty in the majority of States; the infrequency consensus. 492 U.S., at 370-371, 106 L. Ed. 2d 306, of its use even where it remains on the books; and the 109 S. Ct. 2969. A plurality also "emphatically consistency in the trend toward abolition of the practice- reject[ed]" the suggestion that the Court should bring its -provide sufficient evidence that today society views own judgment to bear on the acceptability of the juvenile juveniles, in the words Atkins used respecting the death penalty. Id., at 377-378, 106 L. Ed. 2d 306, 109 mentally retarded, as "categorically less culpable than S. Ct. 2969 [****4] . That same day the Court held, in the average criminal," 536 U.S., at 316, 153 L. Ed. 2d Penry v. Lynaugh, 492 U.S. 302, 334, 106 L. Ed. 2d 335, 122 S. Ct. 2242. The evidence of such consensus 256, 109 S. Ct. 2934, that the Eighth Amendment did is similar, and in some respects parallel, to the evidence not mandate a categorical exemption from the death in Atkins: 30 States prohibit the juvenile death penalty, penalty for mentally retarded persons because only two including 12 that have rejected it altogether and 18 that States had enacted laws banning such executions. maintain it but, by express provision or judicial Three Terms ago in Atkins, however, the Court held that interpretation, exclude juveniles from its reach. standards of decency had evolved since Penry and now Moreover, even in the 20 States without a formal demonstrated that the execution of the mentally prohibition, the execution of juveniles is infrequent. retarded is cruel and unusual punishment. The Atkins Although, by contrast to Atkins, the rate of change in Court noted that objective indicia of society's standards, reducing the incidence of the juvenile death penalty, or [***11] as expressed in pertinent legislative enactments in taking specific steps to abolish it, has been less and state practice, demonstrated that such executions dramatic, the difference between this case and Atkins in had become so truly unusual that it was fair to say that a that respect is counterbalanced by the consistent national consensus has developed against them. 536 direction of the change toward abolition. Indeed, the U.S., at 314-315, 153 L. Ed. 2d 335, 122 S. Ct. 2242. slower pace here may be explained [****7] by the simple The Court also returned to the rule, established in fact that the impropriety of executing juveniles between decisions predating Stanford, that the Constitution 16 and 18 years old gained wide recognition earlier than contemplates that the Court's own judgment be brought the impropriety of executing the mentally retarded. to bear on the question of the acceptability of the death penalty. 536 U.S., at 312, 153 L. Ed. 2d 335, 122 S. Ct. (2) Rejection of the imposition of the death penalty on 2242. After observing that mental retardation juvenile offenders under 18 is required by the Eighth Amendment. Capital punishment must be limited to diminishes [****5] personal culpability even if the offender can distinguish right from wrong, id., at 318, those offenders who commit "a narrow category of the 153 L. Ed. 2d 335, 122 S. Ct. 2242, and that mentally most serious crimes" and whose extreme culpability retarded offenders' impairments make it less defensible makes [***12] them "the most deserving of execution." to impose the death penalty as retribution for past Atkins, supra, at 319, 153 L. Ed. 335, 122 S. Ct. 2242. crimes or as a real deterrent to future crimes, id., at Three general differences between juveniles under 18 319-320, 153 L. Ed. 2d 335, 122 S. Ct. 2242, the Court and adults demonstrate that juvenile offenders cannot ruled that the death penalty constitutes an excessive with reliability be classified among the worst offenders. sanction for the entire category of mentally retarded Juveniles' susceptibility to immature and irresponsible offenders, and that the Eighth Amendment places a behavior means "their irresponsible conduct is not as substantive restriction on the State's power to take such morally reprehensible as that of an adult." Thompson v. an offender's life, id., at 321, 153 L. Ed. 2d 335, 122 S. Oklahoma, 487 U.S. 815, 835, 101 L. Ed. 2d 702, 108

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S. Ct. 2687. Their own vulnerability and comparative give official sanction to the juvenile penalty. It does not lack of control over their immediate surroundings mean lessen fidelity to the Constitution or pride in its origins to juveniles have a greater claim than adults to be forgiven acknowledge that the express affirmation of certain for failing to escape negative influences in their whole fundamental rights by other nations and peoples [***13] environment. See [****8] Stanford, supra, at 395, 106 underscores the centrality of those same rights within L. Ed. 2d 306, 109 S. Ct. 2969. The reality that our own heritage of freedom. juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime 112 S. W. 3d 397, affirmed. committed by a juvenile is evidence of irretrievably depraved character. The Thompson plurality Counsel: James R. Layton argued the cause for recognized the import of these characteristics with petitioner. respect to juveniles under 16. 487 U.S., at 833-838, 101 L.Ed. 2d 702, 108 S. Ct. 2687. The same Seth P. Waxman argued the cause for respondent. reasoning applies to all juvenile offenders under 18. Once juveniles' diminished culpability is recognized, it is Judges: Kennedy, J., delivered the opinion of the Court, evident that neither of the two penological justifications in which Stevens, Souter, Ginsburg, and Breyer, JJ., for the death penalty--retribution and deterrence of joined. Stevens, J., filed a concurring opinion, in which capital crimes by prospective offenders, e.g., Atkins, Ginsburg, J., joined, post, p. 587. O'Connor, J., filed a supra, at 319, 153 L. Ed. 2d 335, 122 S. Ct. 2242 -- dissenting opinion, post, p. 587. Scalia, J., filed a provides adequate justification for imposing that penalty dissenting opinion, in which Rehnquist, C. J., and on juveniles. Although the Court cannot deny or Thomas, J., joined, post, p. 607. overlook the brutal crimes too many juvenile offenders Opinion by: KENNEDY have committed, it disagrees with petitioner's contention that, given the Court's own insistence on individualized consideration in capital sentencing, it is arbitrary and Opinion unnecessary to adopt a categorical rule barring imposition of the [****9] death penalty on an offender [*555] [**1187] Justice Kennedy delivered the opinion under 18. An unacceptable likelihood exists that the of the Court. brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth LEdHN This case requires us to address, for the as a matter of course, even where the juvenile second time in a decade and a half, whether it is offender's objective immaturity, vulnerability, and lack of permissible under the Eighth and Fourteenth true depravity should require a sentence less severe Amendments to the Constitution of the United States to than death. When a juvenile commits a heinous crime, execute a juvenile offender who was older [*556] than the State can exact forfeiture of some of the most basic 15 but younger than 18 when he committed a capital liberties, but the State cannot extinguish his life and his crime. In Stanford v. Kentucky, 492 U.S. 361, 106 L. potential to attain a mature understanding of his own Ed. 2d 306, 109 S. Ct. 2969 (1989), a divided Court humanity. While drawing the line at 18 is subject to the rejected the proposition that the Constitution bars capital objections always raised against categorical rules, that punishment for juvenile offenders in this age group. We is the point where society draws the line for many reconsider the question. purposes between childhood and adulthood and the age I at which the line for death eligibility ought to rest. Stanford should be deemed no longer controlling on this At the age of 17, when he was still a junior in high issue. school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he (c) The overwhelming weight of international opinion had turned 18, he was tried and sentenced to death. against the juvenile death penalty is not controlling here, There is little doubt that Simmons was the instigator of but provides respected and significant confirmation for the crime. Before its commission Simmons said he the Court's determination that the penalty is wanted to murder someone. In chilling, callous terms disproportionate punishment for offenders under 18. he talked about his plan, discussing it for the most part [****10] Thompson, supra, at 830-831, and See, e.g. , with two friends, Charles Benjamin and John Tessmer, n. 31, 101 L. Ed. 2d 702, 108 S. Ct. 2687. The United then aged 15 and 16 respectively. Simmons proposed States is the only country in the world that continues to

Kyle Smith Page 11 of 47 543 U.S. 551, *556; 125 S. Ct. 1183, **1187; 161 L. Ed. 2d 1, ***13; 2005 U.S. LEXIS 2200, ****10 to commit burglary and murder by breaking and testimony [****14] that Simmons discussed the crime in entering, tying up a victim, and throwing the victim off advance and bragged about it later. The defense called a [****12] bridge. Simmons assured his friends they no witnesses in the guilt phase. The jury having could "get away with it" because they were minors. returned a verdict of murder, the trial proceeded to the penalty phase. The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. The State sought the death penalty. As aggravating (The State later charged Tessmer with conspiracy, but factors, the State submitted that the murder was dropped the charge in exchange for his testimony committed for the purpose of receiving money; was against Simmons.) Simmons and Benjamin entered the committed for the purpose of avoiding, interfering with, home of the victim, Shirley Crook, after reaching or preventing lawful arrest of the defendant; and through an open window and unlocking the [**1188] involved depravity of mind and was outrageously and back door. Simmons turned on a hallway light. wantonly vile, horrible, and inhuman. [*558] The State Awakened, Mrs. Crook called out, "Who's there?" In called Shirley Crook's husband, daughter, and two response Simmons entered Mrs. Crook's bedroom, sisters, who presented moving evidence of the where he recognized her from a previous car accident devastation her death had brought to their lives. involving them both. Simmons later admitted this confirmed his resolve to murder her. In mitigation Simmons' attorneys first called an officer of the Missouri juvenile justice system, who testified that Using duct tape to cover her eyes and mouth and bind Simmons had no prior convictions and that no previous her hands, the two perpetrators put Mrs. Crook in her charges had been filed against him. Simmons' mother, minivan and drove to a state park. They reinforced the father, two younger half brothers, a neighbor, and a bindings, covered her head with a towel, and walked her friend took the stand to tell the jurors of the close to a railroad [*557] trestle spanning the Meramec River. relationships they had formed with Simmons and to There they tied her hands and feet together with plead for mercy on his behalf. Simmons' mother, in electrical wire, wrapped her whole face in duct tape and particular, testified to the responsibility [****15] Simmons threw her from the bridge, drowning her in the waters demonstrated in taking care of his two younger half below. brothers and of his grandmother and to his capacity to show love for them. By [****13] the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his During closing arguments, both the prosecutor and bedroom in disarray, and reported his wife missing. On defense counsel addressed Simmons' age, which the the same afternoon [***14] fishermen recovered the trial judge had instructed the jurors they could consider victim's body from the river. Simmons, meanwhile, was as a mitigating factor. Defense counsel reminded the bragging about the killing, telling friends he had killed a jurors that juveniles of Simmons' age cannot drink, woman "because the bitch seen my face." serve on juries, or even see certain movies, because "the legislatures [**1189] have wisely decided that The next day, after receiving information of Simmons' individuals of a certain age aren't responsible enough." involvement, police arrested him at his high school and Defense counsel argued that Simmons' age should took him to the police station in Fenton, Missouri. They make "a huge difference to [the jurors] in deciding just read him his Miranda rights. Simmons waived his right exactly what sort of punishment to make." In rebuttal, to an attorney and agreed to answer questions. After the prosecutor gave the following response: "Age, he less than two hours of interrogation, Simmons says. Think about age. Seventeen years old. Isn't that confessed to the murder and agreed to perform a scary? Doesn't that scare you? Mitigating? Quite the videotaped reenactment at the crime scene. contrary I submit. Quite the contrary."

The State charged Simmons with burglary, kidnaping, The jury recommended the death penalty after finding stealing, and murder in the first degree. As Simmons the State had [***15] proved each of the three was 17 at the time of the crime, he was outside the aggravating factors submitted to it. Accepting the jury's criminal jurisdiction of Missouri's juvenile court system. recommendation, the trial judge imposed the death See Mo. Rev. Stat. §§ 211.021 (2000) and 211.031 penalty. (Supp. 2003). He was tried as an adult. At trial the State introduced Simmons' confession and the Simmons obtained new counsel, who moved [****16] in videotaped reenactment of the crime, along with the trial court to set aside the conviction and sentence.

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One argument was that Simmons had received since Stanford, that five states have legislatively or ineffective assistance at trial. To support this by case law raised or established the minimum age contention, the new counsel called [*559] as witnesses at 18, and that the imposition of the juvenile death Simmons' trial attorney, Simmons' friends and penalty has become truly unusual over the last neighbors, and clinical psychologists who had evaluated decade." 112 S.W.3d, at 399. him. On this reasoning it set aside Simmons' death sentence Part of the submission was that Simmons was "very and resentenced him to "life imprisonment without immature," "very impulsive," and "very susceptible to eligibility for probation, parole, or release except by act being manipulated or influenced." The experts testified of the Governor." Id., at 413. about Simmons' background including a difficult home environment and dramatic changes in behavior, [**1190] We granted certiorari, 540 U.S. 1160, 157 L. accompanied by poor school performance in Ed. 2d 1204, 124 S. Ct. 1171 (2004), and now affirm. adolescence. Simmons was absent from home for long periods, spending time using alcohol and drugs with II other teenagers or young adults. The contention by Simmons' postconviction counsel was that these LEdHN[2] [2] LEdHN The Eighth Amendment provides: matters should have been established in the sentencing HN1 [***16] "Excessive bail shall not be required, nor proceeding. excessive fines imposed, nor cruel and unusual punishments inflicted." HN2 The provision is applicable The trial court found no constitutional violation by to the States through the Fourteenth Amendment. reason of ineffective assistance of counsel and denied Furman v. Georgia, 408 U.S. 238, 239, 33 L. Ed. 2d the motion for postconviction relief. In a consolidated 346, 92 S. Ct. 2726 (1972) (per curiam); Robinson v. appeal from Simmons' conviction and sentence, and California, 370 U.S. 660, 666-667, 8 L. Ed. 2d 758, 82 from the denial of postconviction relief, the Missouri S. Ct. 1417 (1962); [****19] Louisiana ex rel. Francis v. Supreme Court affirmed. [****17] State v. Simmons, Resweber, 329 U.S. 459, 463, 91 L. Ed. 422, 67 S. Ct. 944 S.W.2d 165, 169 (en banc), cert denied, 522 U.S. 374 (1947) (plurality opinion). As the Court explained in 953, 139 L. Ed. 2d 293, 118 S. Ct. 376 (1997). The Atkins,HN3 the Eighth Amendment guarantees federal courts denied Simmons' petition for a writ of individuals the right not to be subjected to excessive habeas corpus. Simmons v. Bowersox, 235 F.3d 1124, sanctions. The right flows from the basic "'precept of 1127 (CA8), cert denied, 534 U.S. 924, 151 L. Ed. 2d justice that punishment for crime should be graduated 206, 122 S. Ct. 280 (2001). and proportioned to [the] offense.'" 536 U.S., at 311, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (quoting Weems v. After these proceedings in Simmons' case had run their United States, 217 U.S. 349, 367, 54 L. Ed. 793, 30 S. course, this Court held that the Eighth and Fourteenth Ct. 544 (1910)). By protecting even those convicted of Amendments prohibit the execution of a mentally heinous crimes, the Eighth Amendment reaffirms the retarded person. Atkins v. Virginia, 536 U.S. 304, 153 duty of the government to respect the dignity of all L. Ed. 2d 335, 122 S. Ct. 2242 (2002). Simmons filed a persons. new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution LEdHN HN4 The prohibition against "cruel and prohibits the execution of a juvenile who was under 18 unusual punishments," like other expansive language in when the crime was committed. the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, The Missouri Supreme Court agreed. State ex rel. and with due regard for its purpose and function in the Simmons v. Roper, 112 S.W.3d 397 (2003) (en banc). constitutional design. To implement this [*561] It held that since Stanford, framework we have established the propriety and affirmed the necessity of referring to "the evolving "a national consensus has developed against the standards of decency that mark the progress of a execution of juvenile offenders, as demonstrated by maturing society" [****20] to determine which the fact that eighteen states now bar such punishments are so disproportionate as to be cruel and executions for juveniles, [*560] that twelve other unusual. Trop v. Dulles, 356 U.S. 86, 100-101, 2 L. Ed. states bar executions altogether, [****18] that no 2d 630, 78 S. Ct. 590 (1958) (plurality opinion). state has lowered its age of execution below 18

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In Thompson v. Oklahoma, 487 U.S. 815, 101 L. Ed. 2d offenders over 15 but under 18. The Court noted that 702, 108 S. Ct. 2687 (1988), a plurality of the Court 22 of the 37 death penalty States permitted the death determined that our standards of decency do not permit penalty for 16-year-old offenders, and, among these 37 the execution of any offender under the age of 16 at the States, 25 permitted it for 17-year-old offenders. These time of the crime. Id., at 818-838, 101 L. Ed. 2d 702, numbers, in the Court's view, indicated there was no 108 S. Ct. 2687 (opinion of Stevens, J., joined by national consensus "sufficient to label a particular Brennan, Marshall, and Blackmun, JJ.). The plurality punishment cruel and unusual." Id., at 370-371, 106 L. opinion explained that no death penalty State that had Ed. 2d 306, 109 S. Ct. 2969. A plurality of the Court given express consideration to a minimum age for the also "emphatically reject[ed]" the suggestion that the death penalty had set the age lower than 16. Id., at Court should bring its own judgment to bear on the 826-829, 101 L. Ed. 2d 702, 108 S. Ct. 2687. The acceptability of the juvenile death penalty. [****23] Id., plurality also observed that "[t]he conclusion that it at 377-378, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (opinion would offend civilized standards of decency to execute a of Scalia, J., joined by Rehnquist, C. J., and White and person who was less than 16 years old at the time of his Kennedy, JJ.); see also id., at 382, 106 L. Ed. 2d 306, or her offense is consistent with the views that have 109 S. Ct. 2969 (O'Connor, J., concurring in part and been expressed by respected professional concurring in judgment) (criticizing the plurality's refusal organizations, by other nations that share our Anglo- "to judge whether the '"nexus between the punishment American heritage, and by the leading members of the imposed and the defendant's blameworthiness"' is Western European community. [****21] " Id., at 830, proportional"). 101 L. Ed. 2d 702, 108 S. Ct. 2687. The opinion further noted that juries imposed the death penalty on offenders The same day the Court decided Stanford, it held that under 16 with exceeding rarity; the last execution of an the Eighth Amendment did not mandate a categorical offender for a crime committed under the age of 16 had exemption from the death penalty for the mentally been carried out in 1948, 40 years prior. Id., at 832- retarded. Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 833, 101 L. Ed. 2d 702, 108 S. Ct. 2687. 2d 256, 109 S. Ct. 2934 (1989). In reaching this conclusion it stressed that only two States had enacted Bringing its independent judgment to bear on the laws banning the imposition of the death penalty on a permissibility of the death penalty for a 15-year-old mentally retarded person convicted of a capital offense. offender, the Thompson plurality stressed that "[t]he Id., at 334, 106 L. Ed. 2d. 256, 109 S. Ct. 2934. reasons why juveniles are not trusted with the privileges According to the Court, "the two state statutes and responsibilities of an adult also explain why their prohibiting execution of the mentally retarded, even irresponsible conduct is not as morally [***17] when added to the 14 States that have rejected capital reprehensible as that of an adult." Id., at 835, 101 L. punishment completely, [*563] [did] not provide Ed. 2d 702, 108 S. Ct. 2687. According to the plurality, sufficient evidence at present of a national consensus." the lesser culpability of offenders under 16 made the Ibid. death penalty inappropriate as a form of retribution, while the low likelihood that [**1191] offenders under 16 [****24] Three Terms ago the subject was reconsidered engaged in "the kind of cost-benefit analysis that [*562] in Atkins. We held that standards of decency have attaches any weight to the possibility of execution" evolved since Penry and now demonstrate that the made the death penalty ineffective as a means of execution of the mentally retarded is cruel and unusual deterrence. [****22] Id., at 836-838, 101 L. Ed. 2d 702, punishment. The Court noted objective indicia of 108 S. Ct. 2687. With Justice O'Connor concurring in society's standards, as expressed in legislative the judgment on narrower grounds, id., at 848-859, 101 enactments and state practice with respect to L. Ed. 2d 702, 108 S. Ct. 2687, the Court set aside the executions of the mentally retarded. When Atkins was death sentence that had been imposed on the 15-year- decided only a minority of States permitted the practice, old offender. and even in those States it was rare. 536 U.S., at 314- 315, 153 L. Ed. 2d 335, 122 S. Ct. 2242. On the basis The next year, in Stanford v. Kentucky, 492 U.S. 361, of these indicia the Court determined that executing 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989), the Court, mentally retarded [***18] offenders "has become truly over a dissenting opinion joined by four Justices, unusual, and it is fair to say that a national consensus referred to contemporary standards of decency in this has developed against it." Id., at 316, 153 L. Ed. 2d country and concluded the Eighth and Fourteenth 335, 122 S. Ct. 2242. Amendments did not proscribe the execution of juvenile

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The inquiry into our society's evolving standards of mentally retarded. This number comprised 12 that had decency did not end there. The Atkins Court neither abandoned the death penalty altogether, and 18 that repeated nor relied upon the statement in Stanford that maintained it but excluded the mentally retarded from its the Court's independent judgment has no bearing on the reach. [****27] 536 U.S., at 313-315, 153 L. Ed. 2d acceptability of a particular punishment under the Eighth 335, 122 S. Ct. 2242. By a similar calculation in this Amendment. Instead we returned to the rule, case, 30 States prohibit the juvenile death penalty, established in decisions predating Stanford, [****25] that comprising 12 that have rejected the death penalty "'the Constitution contemplates that in the end our own altogether and 18 that maintain it but, by express judgment will be brought to bear on the question of the provision or judicial interpretation, exclude juveniles acceptability of the death penalty under the Eighth from its reach. See Appendix A, infra. Atkins Amendment.'" [**1192] 536 U.S., at 312, 153 L. Ed. 2d emphasized that even in the 20 States without formal 335, 122 S. Ct. 2242 (quoting Coker v. Georgia, 433 prohibition, the practice of executing the [***19] U.S. 584, 597, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977) mentally retarded was infrequent. Since Penry, only five (plurality opinion)). Mental retardation, the Court said, States had executed offenders known to have an IQ diminishes personal culpability even if the offender can under 70. 536 U.S., at 316, 153 L. Ed. 2d 335, 122 S. distinguish right from wrong. 536 U.S., at 318, 153 L. Ct. 2242. In the present case, too, even in the 20 Ed. 2d 335, 122 S. Ct. 2242. The impairments of States without a formal prohibition on executing mentally retarded offenders make it less defensible to juveniles, the practice is infrequent. Since Stanford, six impose the death penalty as retribution for past crimes States have executed prisoners for crimes committed as and less likely that the death penalty will have a real juveniles. [*565] In the past 10 years, only three have deterrent effect. Id., at 319-320, 153 L. Ed. 2d 335, 122 done so: Oklahoma, Texas, and Virginia. See V. Streib, S. Ct. 2242. Based on these considerations and on the The Juvenile Death Penalty Today: Death Sentences finding of national consensus against executing the and Executions for Juvenile Crimes, January 1, 1973- mentally retarded, the Court ruled that the death penalty December 31, 2004, No. 76, p 4 (2005), available at constitutes an excessive sanction for the entire category http://www.law.onu.edu/faculty/streib/documents/JuvDe of mentally retarded offenders, [*564] and that the athDec2004.pdf (last updated [****28] Jan. 31, 2005) (as Eighth Amendment "'places a substantive restriction on visited Feb. 25, 2005, and available in Clerk of Court's the State's power to take the life' of a mentally case file). In December 2003 the Governor of Kentucky retarded [****26] offender." Id., at 321, 153 L. Ed. 2d decided to spare the life of Kevin Stanford, and 335, 122 S. Ct. 2242 (quoting Ford v. Wainwright, 477 commuted his sentence to one of life imprisonment U.S. 399, 405, 91 L. Ed. 2d 335, 106 S. Ct. 2595 without parole, with the declaration that "'[w]e ought not (1986)). be executing people who, legally, were children.'" Lexington Herald Leader, Dec. 9, 2003, p B3, 2003 WL Just as the Atkins Court reconsidered the issue decided 65043346. By this act the Governor ensured Kentucky in Penry, we now reconsider the issue decided in would not add itself to the list of [**1193] States that Stanford. The beginning point is a review of objective have executed juveniles within the last 10 years even by indicia of consensus, as expressed in particular by the the execution of the very defendant whose death enactments of legislatures that have addressed the sentence the Court had upheld in Stanford v Kentucky. question. These data give us essential instruction. We then must determine, in the exercise of our own There is, to be sure, at least one difference between the independent judgment, whether the death penalty is a evidence of consensus in Atkins and in this case. disproportionate punishment for juveniles. Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States III that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time A we heard Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death penalty, or LEdHN The evidence of national consensus against in taking specific steps to abolish it, has been slower. the death penalty for juveniles is similar, and in some Five [****29] States that allowed the juvenile death respects parallel, to the evidence Atkins held sufficient penalty at the time of Stanford have abandoned it in the to demonstrate a national consensus against the death intervening 15 years--four through legislative penalty for the mentally retarded. When Atkins was enactments and one through judicial decision. Streib, decided, 30 States prohibited the death penalty for the supra, at 5, 7; State v. Furman, 122 Wn.2d 440, 858

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P.2d 1092 (1993) (en banc). words of the Missouri Supreme Court: "It would be the ultimate in irony if the very fact that the LEdHN LEdHN[4] [4] Though less dramatic than the inappropriateness of the death penalty for juveniles was change from Penry to Atkins ("telling," to borrow the broadly recognized sooner than it was recognized for word Atkins used to describe this difference, 536 U.S., the mentally retarded were to become a reason to at 315, n. 18, 153 L. Ed. 2d 335, 122 S. Ct. 2242), we continue the execution [**1194] of juveniles now that the still consider the change from Stanford to this case to be execution of the mentally retarded has been barred." significant. As noted in Atkins, with respect to the [****32] 112 S.W.3d, at 408, n. 10. States that had abandoned [*566] the death penalty for the mentally retarded since Penry, "[i]t is not so much LEdHN Petitioner cannot show national consensus in the number of these States that is significant, but the favor of capital punishment for juveniles but still resists consistency of the direction of change." 536 U.S., at the conclusion that any consensus exists against it. 315, 153 L. Ed. 2d 335, 122 S. Ct. 2242. In particular Petitioner supports this position with, in particular, the we found it significant that, in the wake of Penry, no observation that when the Senate ratified the State that had already prohibited the execution of the International Covenant on Civil and Political Rights mentally retarded had passed legislation to reinstate the (ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171 (entered penalty. [****30] 536 U.S., at 315-316, 153 L. Ed. 2d into force Mar. 23, 1976), it did so subject to the 335, 122 S. Ct. 2242. The number of States that have President's proposed reservation regarding Article 6(5) abandoned capital punishment for juvenile offenders of that treaty, which prohibits capital punishment for since Stanford is smaller than the number of States that juveniles. Brief for Petitioner 27. This reservation at abandoned capital punishment for the mentally retarded best provides only faint support for petitioner's after Penry; yet we think the same consistency of argument. First, the reservation was passed in 1992; direction of change has been demonstrated. Since since then, five States have abandoned capital Stanford, no State that previously prohibited capital punishment for juveniles. Second, Congress considered punishment for juveniles has reinstated it. This fact, the issue when enacting the Federal Death Penalty Act [***20] coupled with the trend toward abolition of the in 1994, and determined that the death penalty should juvenile death penalty, carries special force in light of not extend to juveniles. See 18 U.S.C. § 3591. The the general popularity of anticrime legislation, Atkins, reservation to Article 6(5) of the ICCPR provides supra, at 315, 153 L. Ed. 2d 335, 122 S. Ct. 2242, and minimal evidence that there is not now a national in light of the particular trend in recent years toward consensus against juvenile executions. cracking down on juvenile crime in other respects, see H. Snyder & M. Sickmund, National Center for Juvenile [****33] As in Atkins, the objective indicia of consensus Justice, Juvenile Offenders and Victims: 1999 National in this case--the rejection of the juvenile death penalty in Report 89, 133 (Sept. 1999); Scott & Grisso, The the majority of States; the infrequency of its use even Evolution of Adolescence: A Developmental Perspective where it remains on the books; and the consistency in on Juvenile Justice Reform, 88 J. Crim. L. & C. 137, 148 the trend toward abolition of the practice--provide (1997). Any difference between this case and Atkins sufficient evidence that today our society views with respect to the pace of abolition is thus [****31] juveniles, in the words Atkins used respecting the counterbalanced by the consistent direction of the mentally retarded, as "categorically less culpable than change. the [***21] average criminal." 536 U.S., at 316, 153 L. Ed. 2d 335, 122 S. Ct. 2242. The slower pace of abolition of the juvenile death penalty over the past 15 years, moreover, may have a [*568] B simple explanation. When we heard Penry, only two death penalty States had already prohibited the HN5 A majority of States have rejected the imposition of execution of the mentally retarded. When we heard the death penalty on juvenile offenders under 18, and Stanford, by contrast, 12 death penalty States had we now hold this is required by the Eighth Amendment. already prohibited the execution of any juvenile under 18, and 15 had prohibited the execution of any juvenile LEdHN[5] [5]LEdHN[6] [6]LEdHN[7] [7]LEdHN[8] [8] under 17. If anything, this shows that the impropriety of HN6 Because the death penalty is the most severe executing juveniles between 16 and 18 years of age punishment, the Eighth Amendment applies to it with special force. Thompson, 487 U.S., at 856, 101 L. Ed. [*567] gained wide recognition earlier than the 2d 702, 108 S. Ct. 2687 (O'Connor, J., concurring in impropriety of executing the mentally retarded. In the

Kyle Smith Page 16 of 47 543 U.S. 551, *568; 125 S. Ct. 1183, **1194; 161 L. Ed. 2d 1, ***21; 2005 U.S. LEXIS 2200, ****33 judgment). Capital punishment must be limited to those 71 L. Ed. 2d 1, 102 S. Ct. 869 ("Even the normal 16- offenders who commit "a narrow category of the most year-old customarily lacks the maturity of an adult"). It serious crimes" and whose extreme culpability makes has been noted that "adolescents are overrepresented them "the most deserving of execution." [****34] Atkins, [***22] statistically in virtually every category of reckless supra, at 319, 153 L. Ed. 2d 335, 122 S. Ct. 2242. This behavior." Arnett, Reckless Behavior in Adolescence: A principle is implemented throughout the capital Developmental Perspective, 12 Developmental Review sentencing process. States must give narrow and 339 (1992). In recognition of the comparative precise definition to the aggravating factors that can immaturity and irresponsibility of juveniles, almost every result in a capital sentence. Godfrey v. Georgia, 446 State prohibits those under 18 years of age from voting, U.S. 420, 428-429, 64 L. Ed. 2d 398, 100 S. Ct. 1759 serving on juries, or marrying without parental consent. (1980) (plurality opinion). In any capital case a See Appendixes B-D, infra. defendant has wide latitude to raise as a mitigating factor "any aspect of [his or her] character or record and LEdHN The second area of difference is that juveniles any of the circumstances of the offense that the are more vulnerable or susceptible to negative defendant proffers as a basis for a sentence less than influences and outside pressures, including peer death." Lockett v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d pressure. [****37] Eddings, supra, at 115, 71 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (plurality opinion); Eddings 1, 102 S. Ct. 869 ("[Y]outh is more than a chronological v. Oklahoma, 455 U.S. 104, 110-112, 71 L. Ed. 2d 1, fact. It is a time and condition of life when a person may 102 S. Ct. 869 (1982); see also Johnson v. Texas, 509 be most susceptible to influence and to psychological U.S. 350, 359-362, 125 L. Ed. 2d 290, 113 S. Ct. 2658 damage"). This is explained in part by the prevailing (1993) (summarizing the Court's jurisprudence after circumstance that juveniles have less control, or less Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 experience with control, over their own environment. S. Ct. 2726 (1972) (per curiam), with respect to a See Steinberg & Scott, Less Guilty by Reason of sentencer's consideration of aggravating and mitigating Adolescence: Developmental Immaturity, Diminished factors). [****35] There are a number of crimes that Responsibility, and the Juvenile Death Penalty, 58 Am. beyond question are severe in absolute terms, yet the Psychologist 1009, 1014 (2003) (hereinafter Steinberg & death penalty may not be imposed for their commission. Scott) ("[A]s legal minors, [juveniles] lack the freedom Coker v. Georgia, 433 U.S. 584, 53 L. Ed. 2d 982, 97 S. that adults have to extricate themselves from a Ct. 2861 (1977) (rape of an adult woman); Enmund v. criminogenic setting"). Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982) (felony murder where [**1195] defendant [*570] The third broad difference is that the character of did not kill, attempt to kill, or intend to kill). The death a juvenile is not as well formed as that of an adult. The penalty may not be imposed on certain classes of personality traits of juveniles are more transitory, less offenders, such as juveniles under 16, the insane, and fixed. See generally E. Erikson, Identity: Youth and the mentally retarded, no matter how heinous the crime. Crisis (1968). Thompson v Oklahoma, supra; Ford v. Wainwright, 477 These differences render suspect any conclusion that a U.S. 399, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986); juvenile falls among the worst offenders. The Atkins, supra. These rules vindicate the underlying susceptibility of juveniles to immature and irresponsible principle [*569] that the death penalty is reserved for a narrow category of crimes and offenders. behavior means "their irresponsible conduct is not as morally reprehensible [****38] as that of an adult." LEdHN LEdHN Three general differences between Thompson, supra, at 835, 101 L. Ed. 2d 702, 108 S. Ct. juveniles under 18 and adults demonstrate that juvenile 2687 (plurality opinion). Their own vulnerability and offenders cannot with reliability be classified among the comparative lack of control over their immediate worst offenders. First, as any parent knows and as the surroundings mean juveniles have a greater claim than scientific and sociological studies respondent and his adults to be forgiven for failing to escape negative amici [****36] cite tend to confirm, "[a] lack of maturity influences in their whole environment. See Stanford, and an underdeveloped sense of responsibility are 492 U.S., at 395, 106 L. Ed. 2d 306, 109 S. Ct. 2969 found in youth more often than in adults and are more (Brennan, J., dissenting). The reality that juveniles still understandable among the young. These qualities often struggle to define their identity means it is less result in impetuous and ill-considered actions and supportable to conclude that even a heinous crime decisions." Johnson, supra, at 367, 125 L. Ed. 2d 290, committed by a juvenile is evidence of irretrievably 113 S. Ct. 2658; see also Eddings, supra, at 115-116, depraved character. From a moral standpoint it would

Kyle Smith Page 17 of 47 543 U.S. 551, *570; 125 S. Ct. 1183, **1195; 161 L. Ed. 2d 1, ***22; 2005 U.S. LEXIS 2200, ****38 be misguided to equate the failings of a minor with those measurable deterrent effect on juveniles, as counsel for of an adult, for a greater possibility exists that a minor's petitioner acknowledged at oral argument. Tr. of Oral character deficiencies will [**1196] be reformed. Indeed, Arg. 48. In general we leave to legislatures the "[t]he relevance of youth as a mitigating factor derives assessment of the efficacy of various criminal penalty from the fact that the signature qualities of youth are schemes, see Harmelin v. Michigan, 501 U.S. 957, transient; as individuals mature, the impetuousness and 998-999, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991) recklessness that may dominate in younger years can (Kennedy, J., concurring in part and concurring in subside." [****39] Johnson, supra, at 368, 125 L. Ed. 2d judgment). Here, however, the absence of evidence of 290, 113 S. Ct. 2658; see also Steinberg & Scott 1014 deterrent effect is of special concern because the same ("For most teens, [risky or antisocial] behaviors are characteristics that render juveniles less culpable than fleeting; they cease with maturity as individual identity adults suggest as well that juveniles will be less becomes settled. Only a relatively small proportion of susceptible to deterrence. In particular, as the plurality adolescents who experiment in risky or illegal activities observed in [*572] Thompson, "[t]he likelihood that the develop entrenched patterns of problem behavior that teenage offender has made the kind of cost-benefit persist into adulthood"). analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent." LEdHN In Thompson, a plurality of the Court 487 U.S., at 837, 101 L. Ed. 2d 702, 108 S. Ct. 2687. recognized the import of these characteristics with To the extent the juvenile death penalty might have respect to juveniles under 16, and relied on them to residual deterrent effect, it is worth noting that the [***23] hold that the Eighth Amendment prohibited the punishment of life imprisonment without the [****42] imposition of the death penalty on juveniles [*571] possibility of parole is itself a severe sanction, in below that age. 487 U.S., at 833-838, 101 L. Ed. 2d particular for a young person. 702, 108 S. Ct. 2687. We conclude the same reasoning applies to all juvenile offenders under 18. LEdHN[12] [12] In concluding that neither retribution nor deterrence provides adequate justification for imposing LEdHN LEdHN Once the diminished culpability of the death penalty on juvenile offenders, we cannot deny juveniles is recognized, it is evident that the penological or overlook the brutal crimes too many juvenile justifications for the death penalty apply to them with offenders have committed. See Brief for [**1197] lesser force than to adults. We have held there are two Alabama et al. as Amici Curiae. Certainly it can be distinct social purposes served by the death penalty: argued, although we by no means concede the point, "'retribution and deterrence of capital crimes [****40] by that a rare case might arise in which a juvenile offender prospective offenders.'" Atkins, 536 U.S., at 319, 153 L. has sufficient psychological maturity, and at the same Ed. 2d 335, 122 S. Ct. 2242 (quoting Gregg v. Georgia, time demonstrates sufficient depravity, to merit a 428 U.S. 153, 183, 49 L. Ed. 2d 859, 96 S. Ct. 2909 sentence of death. Indeed, this possibility is the linchpin (1976) (joint opinion of Stewart, Powell, and Stevens, of one contention pressed by [***24] petitioner and his JJ.)). As for retribution, we remarked in Atkins that "[i]f amici. They assert that even assuming the truth of the the culpability of the average murderer is insufficient to observations we have made about juveniles' diminished justify the most extreme sanction available to the State, culpability in general, jurors nonetheless should be the lesser culpability of the mentally retarded offender allowed to consider mitigating arguments related to surely does not merit that form of retribution." 536 U.S., youth on a case-by-case basis, and in some cases to at 319, 153 L. Ed. 2d 335, 122 S. Ct. 2242. The same impose the death penalty if justified. A central feature of conclusions follow from the lesser culpability of the death penalty sentencing is a particular assessment of juvenile offender. Whether viewed as an attempt to the circumstances of the crime and the characteristics express the community's moral outrage or as an attempt of [****43] the offender. The system is designed to to right the balance for the wrong to the victim, the case consider both aggravating and mitigating circumstances, for retribution is not as strong with a minor as with an including youth, in every case. Given this Court's own adult. Retribution is not proportional if the law's most insistence on individualized consideration, petitioner severe penalty is imposed on one whose culpability or maintains that it is both arbitrary and unnecessary to blameworthiness is diminished, to a substantial degree, adopt a categorical rule barring imposition of the death by reason of youth and immaturity. penalty on any offender under 18 years of age.

LEdHN LEdHN[11] [11] As for deterrence, it is unclear LEdHN LEdHN We disagree. The differences whether the death penalty has a significant or even between juvenile and adult offenders are too marked

Kyle Smith Page 18 of 47 543 U.S. 551, *572; 125 S. Ct. 1183, **1197; 161 L. Ed. 2d 1, ***24; 2005 U.S. LEXIS 2200, ****43 and well understood to risk allowing [*573] a youthful that offenders under 16 may not be executed has not person to receive the death penalty despite insufficient been challenged. The logic of Thompson extends to culpability. An unacceptable likelihood exists that the those who are under 18. The age of 18 is the point brutality or cold-blooded nature of any particular crime where society draws the line for many purposes would overpower mitigating arguments based on youth between childhood and adulthood. It is, [****46] we as a matter of course, even where the juvenile conclude, the age at which the line for death eligibility offender's objective immaturity, vulnerability, and lack of ought to rest. true depravity should require a sentence less severe than death. In some cases a defendant's youth may These considerations mean HN7 Stanford v Kentucky even be counted against him. In this very case, as we should be deemed no longer controlling on this issue. noted above, the prosecutor argued Simmons' youth To the extent Stanford was based on review of the was aggravating rather than mitigating. [****44] Supra, objective indicia of consensus that obtained in 1989, at 558, 161 L. Ed. 2d, at 14. While this sort of 492 U.S., at 370-371, 106 L. Ed. 2d 306, 109 S. Ct. overreaching could be corrected by a particular rule to 2969, it suffices to note that those indicia have changed. ensure that the mitigating force of youth is not Supra, at 564-567, 161 L. Ed. 2d, at 18-21. It should be overlooked, that would not address our larger concerns. observed, furthermore, that the Stanford Court should have considered those States that had abandoned the LEdHN It is difficult even for expert psychologists to death penalty altogether as part of the consensus differentiate between the juvenile offender whose crime against the juvenile death penalty, 492 U.S., at 370, n. reflects unfortunate yet transient immaturity, and the 2, 106 L. Ed. 2d 306, 109 S. Ct. 2969; a State's decision rare juvenile offender whose crime reflects irreparable to bar the death penalty altogether of necessity corruption. See Steinberg & Scott 1014-1016. As we demonstrates a judgment that the death penalty is understand it, this difficulty underlies the rule forbidding inappropriate for all offenders, including juveniles. Last, psychiatrists from diagnosing any patient under 18 as to the extent Stanford was based on a rejection of the having antisocial personality disorder, a disorder also idea that this Court is required to bring its independent referred to as psychopathy or sociopathy, and which is judgment to bear on the proportionality of the death characterized by callousness, cynicism, and contempt penalty for a particular class of crimes or offenders, for the feelings, rights, and suffering of others. [****47] id., at 377-378, 106 L. Ed. 2d 306, 109 S. Ct. American Psychiatric Association, Diagnostic and 2969 (plurality opinion), it suffices to note that this Statistical Manual of Mental Disorders 701-706 (4th ed. rejection was inconsistent with prior Eighth Amendment text rev. 2000); see also Steinberg & Scott 1015. If decisions, Thompson, 487 U.S., at 833-838, [*575] 101 trained psychiatrists with the advantage of clinical L. Ed. 2d 702, 108 S. Ct. 2687 (plurality opinion); testing and observation refrain, despite diagnostic Enmund, 458 U.S., at 797, 73 L. Ed. 2d 1140, 102 S. Ct. expertise, from assessing any juvenile under 18 as 3368; Coker, 433 U.S., at 597, 53 L. Ed. 2d 982, 97 S. having antisocial personality disorder, [****45] we Ct. 2861 (plurality opinion). It is also inconsistent with conclude that States should refrain from asking jurors to the premises of our recent decision in Atkins. 536 U.S., issue a far graver condemnation--that a juvenile at 312-313, 317-321, 153 L. Ed. 2d 335, 122 S. Ct. offender merits the death penalty. When a juvenile 2242. offender commits a heinous crime, the State can exact forfeiture of some [*574] of the most basic liberties, but In holding that the death penalty cannot be imposed the State cannot extinguish his life and his potential to upon juvenile offenders, we take into account the attain a mature understanding of his own humanity. circumstance that some States have relied on Stanford in seeking the death penalty against juvenile offenders. LEdHN Drawing the line at 18 years of age is subject, This consideration, however, does not outweigh our of course, to the objections always raised against conclusion that Stanford should no longer control in categorical rules. The qualities that distinguish juveniles those few pending cases or in those yet to arise. from adults do not disappear when an individual turns IV 18. By the same token, some under [***25] 18 have already attained a level of maturity some adults will LEdHN LEdHN Our determination that the death never reach. For the [**1198] reasons we have penalty is disproportionate punishment for offenders discussed, however, a line must be drawn. The plurality under 18 finds confirmation in the stark reality that the opinion in Thompson drew the line at 16. In the United States is the only country in the world [****48] intervening years the Thompson plurality's conclusion

Kyle Smith Page 19 of 47 543 U.S. 551, *575; 125 S. Ct. 1183, **1198; 161 L. Ed. 2d 1, ***25; 2005 U.S. LEXIS 2200, ****48 that continues to give official sanction to the juvenile prohibitions are contained in other significant death penalty. This reality does not become controlling, international covenants. See ICCPR, Art. 6(5), 999 U. for the task of interpreting the Eighth Amendment N. T. S., at 175 (prohibiting capital punishment for remains our responsibility. Yet at least from the time of anyone under 18 at the time of offense) (signed and the Court's decision in Trop, HN8 the Court has referred ratified by the United States subject to a reservation to the laws of other countries and to international regarding Article 6(5), as noted, supra, at 567, 161 L. authorities as instructive for its interpretation of the Ed. 2d, at 20); American Convention on Human Rights: Eighth Amendment's prohibition of "cruel and unusual Pact of San Jose, Costa Rica, Art. 4(5), Nov. 22, 1969, punishments." 356 U.S., at 102-103, 2 L. Ed. 2d 630, 1144 U. N. T. S. 146 (entered into force July 19, 1978) 78 S. Ct. 590 (plurality opinion) ("The civilized nations of (same); African Charter on the Rights and Welfare of the world are in virtual unanimity that statelessness is the Child, Art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990) not to be imposed as punishment [***26] for crime"); (entered into force Nov. 29, 1999) (same). see also Atkins, supra, at 317, n. 21, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (recognizing that "within the world [*577] Respondent and his amici have submitted, and community, the imposition of the death penalty for petitioner does not contest, that only [****51] seven crimes committed by mentally retarded offenders is countries other than the United States have executed overwhelmingly disapproved"); Thompson, supra, at juvenile offenders since 1990: Iran, Pakistan, Saudi 830-831, and n. 31, 101 L. Ed. 2d 702, 108 S. Ct. 2687 Arabia, Yemen, Nigeria, the Democratic Republic of (plurality opinion) (noting the abolition of the juvenile Congo, and China. Since then each of these countries death penalty "by other nations that share our Anglo- has either abolished capital punishment for juveniles or American heritage, and by the leading members of the made public disavowal of the practice. Brief for Western European community," and observing [****49] Respondent 49-50. In sum, it is fair to say that the that "[w]e have previously recognized the relevance of United States now stands alone in a world that has the views of the international community [*576] in [***27] turned its face against the juvenile death determining whether a punishment is cruel [**1199] and penalty. unusual"); Enmund, supra, at 796-797, n. 22, 73 L. Ed.2d 1140, 102 S. Ct. 3368 (observing that "the LEdHN[15] [15] Though the international covenants doctrine of felony murder has been abolished in prohibiting the juvenile death penalty are of more recent England and India, severely restricted in Canada and a date, it is instructive to note that the United Kingdom number of other Commonwealth countries, and is abolished the juvenile death penalty before these unknown in continental Europe"); Coker, supra, at 596, covenants came into being. The United Kingdom's n. 10, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (plurality opinion) experience bears particular relevance here in light of the ("It is . . . not irrelevant here that out of 60 major nations historic ties between our countries and in light of the in the world surveyed in 1965, only 3 retained the death Eighth Amendment's own origins. The Amendment was penalty for rape where death did not ensue"). modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: As respondent and a number of amici emphasize, "[E]xcessive Bail ought not to be required nor excessive Article 37 of the United Nations Convention on the Fines imposed; nor cruel and unusual Punishments Rights of the Child, which every country in the world has inflicted." 1 W. & M., ch. 2, § 10, in 3 Eng. Stat. at Large ratified save for the United States and Somalia, contains 441 [****52] (1770); see also Trop, supra, at 100, 2 L. an express prohibition on capital punishment for crimes Ed. 2d 630, 78 S. Ct. 590 (plurality opinion). As of now, committed by juveniles under 18. United Nations the United Kingdom has abolished the death penalty in Convention on the Rights of the Child, Art. 37, Nov. 20, its entirety; but, decades before it took this step, it 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 recognized the disproportionate nature of the juvenile (entered into force Sept. 2, 1990); Brief [****50] for death penalty; and it abolished that penalty as a Respondent 48; Brief for European Union et al. as Amici separate matter. In 1930 an official committee Curiae 12-13; Brief for President James Earl Carter, Jr., recommended that the minimum age for execution be et al. as Amici Curiae 9; Brief for Former U. S. raised to 21. House of Commons Report from the Diplomats Morton Abramowitz et al. as Amici Curiae 7; Select Committee on Capital Punishment (1930), Brief for Human Rights Committee of the Bar of England [**1200] 193, p 44. Parliament then enacted the and Wales et al. as Amici Curiae 13-14. No ratifying Children and Young Person's Act of 1933, 23 Geo. 5, country has entered a reservation to the provision ch. 12, which prevented execution of those aged 18 at prohibiting the execution of juvenile offenders. Parallel the date of the sentence. And in 1948, Parliament

Kyle Smith Page 20 of 47 543 U.S. 551, *577; 125 S. Ct. 1183, **1200; 161 L. Ed. 2d 1, ***27; 2005 U.S. LEXIS 2200, ****52 enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. I. STATES THAT PERMIT THE IMPOSITION OF THE 58, prohibiting the execution of any person under 18 at DEATH PENALTY ON JUVENILES the time of the offense. In the 56 years that have passed [*578] since the United Kingdom abolished the Go to table1 juvenile death penalty, the weight of authority against it there, and in the international community, has become [****55] well established. [*580] [***30] [**1201] II. STATES THAT RETAIN THE LEdHN It is proper that we acknowledge the DEATH PENALTY, BUT SET THE MINIMUM AGE AT overwhelming weight of international opinion against the 18 juvenile death penalty, resting in large part on the understanding that the instability and emotional Go to table2 imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the [****56] Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not * * * controlling our outcome, does provide respected and During the past year, decisions by the highest courts of significant confirmation for our own conclusions. Kansas and New York invalidated provisions in those Over time, from one generation to the next, the States' death penalty statutes. State v. Marsh, 278 Constitution has come to earn the high respect and Kan. 520, 102 P. 3d 445 (2004) (invalidating provision even, as Madison dared to hope, the veneration of the that required imposition of the death penalty if American people. See The Federalist No. 49, p 314 (C. aggravating and mitigating circumstances were found to Rossiter ed. 1961). The document sets forth, and rests be in equal balance); People v. LaValle, 3 N.Y.3d 88, upon, innovative principles original to the American 817 N.E.2d 341, 783 N.Y.S.2d 485 (2004) (invalidating experience, such as federalism; a proven balance in mandatory requirement to instruct the jury that, in the political mechanisms through separation of powers; case of jury deadlock as to the appropriate sentence in specific guarantees for the accused in criminal cases; a capital case, the defendant would receive a sentence and broad provisions to secure individual freedom and of life imprisonment with parole eligibility after serving a preserve human dignity. These doctrines and minimum of 20 to 25 years). Due to these decisions, it guarantees are central to the American experience and would appear that in these States the death penalty remain essential to our present-day self-definition and remains on the books, but that as a practical matter it national [****54] identity. Not the least of the reasons we might not be imposed on anyone until there is a change honor the Constitution, then, is because we know it to of course in these decisions, or until the respective state be our own. It does not lessen our fidelity to the legislatures remedy the problems the courts have Constitution or our pride in its origins to acknowledge identified. Marsh, supra, at 524-526, 544-546, 102 that the express affirmation of certain fundamental rights P.3d, at 452, 464; [****57] LaValle, supra, at 99, 817 N. by other nations and peoples simply underscores the E. 2d, at 344. centrality of those same rights within our own heritage of [*581] [***31] III. STATES WITHOUT THE DEATH freedom. PENALTY [***28] * * * Go to table3 LEdHN The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were [***32] [**1202] APPENDIX B TO OPINION OF under the age of 18 when their crimes were committed. THE COURT The judgment [*579] of the Missouri Supreme Court setting aside the sentence of death imposed upon STATE STATUTES ESTABLISHING A MINIMUM AGE Christopher Simmons is affirmed. TO VOTE

It is so ordered. Go to table4

[***29] APPENDIX A TO OPINION OF THE [****58] COURT

Kyle Smith Page 21 of 47 543 U.S. 551, *581; 125 S. Ct. 1183, **1202; 161 L. Ed. 2d 1, ***32; 2005 U.S. LEXIS 2200, ****58

* * * great lawyers of his day--Alexander Hamilton, for example--were sitting with us today, I would expect [**1203] [***33] [*583] The Twenty-Sixth Amendment to them to join [****61] Justice Kennedy's opinion for the the Constitution of the United States provides that "[t]he Court. In all events, I do so without hesitation. right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or Dissent by: O'CONNOR; SCALIA abridged by the United States or by any State on account of age." Dissent [***34] APPENDIX C TO OPINION OF THE COURT [**1206] Justice O'Connor, dissenting.

STATE STATUTES ESTABLISHING A MINIMUM AGE The Court's decision today establishes a categorical rule FOR JURY SERVICE forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the Go to table5 objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in [****59] [***35] tandem suffice to justify this ruling. [**1204] [*585] [***36] APPENDIX D TO OPINION OF THE COURT [*588] Although the Court finds support for its decision in the fact that a majority of the States now disallow STATE STATUTES ESTABLISHING A MINIMUM AGE capital punishment of 17-year-old offenders, it refrains FOR MARRIAGE WITHOUT PARENTAL OR JUDICIAL from asserting that its holding is compelled by a genuine CONSENT national consensus. Indeed, the evidence before us fails to demonstrate conclusively that any such Go to table6 consensus has emerged in the brief period since we upheld the constitutionality of this practice in [****62] [****60] [***37] Stanford v. Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989). Concur by: Stevens Instead, the rule decreed by the Court rests, ultimately, Concur on its independent moral judgment that death is a disproportionately severe punishment for any 17-year- old offender. I do not subscribe to this judgment. [*587] [***38] [**1205] Justice Stevens, with whom Adolescents as a class are undoubtedly less mature, Justice Ginsburg joins, concurring. and therefore less culpable for their misconduct, than Perhaps even more important than our specific holding adults. But the Court has adduced no evidence today is our reaffirmation of the basic principle that impeaching the seemingly reasonable conclusion informs the Court's interpretation of the Eighth reached by many state legislatures: that at least some Amendment. If the meaning of that Amendment had 17-year-old murderers are sufficiently mature to deserve been frozen when it was originally drafted, it would the death penalty in an appropriate case. Nor has it impose no impediment to the execution of 7-year-old been shown that capital sentencing juries are incapable children today. See Stanford v. Kentucky, 492 U.S. of accurately assessing a youthful defendant's maturity 361, 368, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989) or of giving due weight to the mitigating characteristics (describing the common law at the time of the associated with youth. Amendment's adoption). The evolving standards of On this record--and especially in light of the fact that so decency that have driven our construction of this little has changed since our recent decision in Stanford-- critically important part of the Bill of Rights foreclose any I would not substitute our judgment about the moral such reading of the Amendment. In the best tradition of propriety of capital punishment for 17-year-old the common law, the pace of that evolution is a matter murderers for the judgments of the Nation's legislatures. for continuing debate; but that our understanding of the Rather, I would demand a clearer showing that Constitution does change from time to time has been our [****63] society truly has set its face against [***39] settled since John Marshall breathed life into its text. If

Kyle Smith Page 22 of 47 543 U.S. 551, *588; 125 S. Ct. 1183, **1206; 161 L. Ed. 2d 1, ***39; 2005 U.S. LEXIS 2200, ****63 this practice before reading the Eighth Amendment 53 L. Ed. 2d 982, 97 S. Ct. 2861 (plurality opinion). categorically to forbid it. Laws enacted by the Nation's legislatures provide the "clearest and most reliable objective evidence of I contemporary values." Penry v. Lynaugh, 492 U.S. 302, 331, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). [*590] A And data reflecting the actions of sentencing juries, where available, can also afford "'a significant and Let me begin by making clear that I agree with much of reliable objective index'" of societal mores. Coker, the Court's description of the general principles that supra, at 596, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (plurality guide our Eighth Amendment jurisprudence. The opinion) (quoting Gregg v. Georgia, 428 U.S. 153, 181, Amendment [*589] bars not only punishments that are 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (joint opinion of inherently "'barbaric,'" but also those that are Stewart, Powell, and Stevens, JJ.)). "'excessive' in relation to the crime committed." Coker v. Georgia, 433 U.S. 584, 592, 53 L. Ed. 2d 982, 97 S. Although objective evidence of this nature is entitled to Ct. 2861 (1977) (plurality opinion). A sanction is great weight, it does not end our inquiry. Rather, as the therefore beyond the State's authority to inflict if it Court today reaffirms, see [****66] ante, at 563, 574- makes "no measurable contribution" to acceptable penal 575, 161 L. Ed. 2d, at 18, 24-25, "the Constitution goals or is "grossly out of proportion to the severity of contemplates that in the end our [***40] own judgment the crime." Ibid. The basic "precept of justice that will be brought to bear on the question of the punishment for crime should be . . . proportioned to [the] acceptability of the death penalty under the Eighth offense," Weems v. United States, 217 U.S. 349, 367, Amendment," Coker, supra, at 597, 53 L. Ed. 2d 982, 54 L. Ed. 793, 30 S. Ct. 544 (1910), applies with special 97 S. Ct. 2861 (plurality opinion). "[P]roportionality--at force to the death penalty. In capital cases, the least as regards capital punishment--not only requires Constitution demands that the punishment be tailored an inquiry into contemporary standards as expressed by both to the nature of the crime itself and to the legislators and jurors, but also involves the notion that defendant's "personal responsibility and moral guilt." the magnitude of the punishment imposed must be [****64] Enmund v. Florida, 458 U.S. 782, 801, 73 L. related to the degree of the harm inflicted on the victim, Ed. 2d 1140, 102 S. Ct. 3368 (1982); see also id., at as well as to the degree of the defendant's 825, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (O'Connor, J., blameworthiness." Enmund, supra, at 815, 73 L. Ed. 2d dissenting); Tison v. Arizona, 481 U.S. 137, 149, 95 L. 1140, 102 S. Ct. 3368 (O'Connor, J., dissenting). We Ed. 2d 127, 107 S. Ct. 1676 (1987); Eddings v. therefore have a "constitutional obligation" to judge for Oklahoma, 455 U.S. 104, 111-112, 71 L. Ed. 2d 1, 102 ourselves whether the death penalty is excessive S. Ct. 869 (1982). punishment for a particular offense or class of offenders. See Stanford, 492 U.S., at 382, 106 L. Ed. 2d 306, 109 It is by now beyond serious dispute that the Eighth S. Ct. 2969 (O'Connor, J., concurring in part and Amendment's prohibition of "cruel and unusual concurring in judgment); see also [****67] Enmund, punishments" is not a static command. Its mandate supra, at 797, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 ("[I]t is would be [**1207] little more than a dead letter today if it for us ultimately to judge whether the Eighth barred only those sanctions--like the execution of Amendment permits imposition of the death penalty"). children under the age of seven--that civilized society had already repudiated in 1791. See ante, at 587, 161 B L. Ed. 2d, at 38 (Stevens, J., concurring); cf. Stanford, supra, at 368, 106 L. Ed. 2d 306, 109 S. Ct. 2969 Twice in the last two decades, the Court has applied (discussing the common law rule at the time the Bill of these principles in deciding whether the Eighth Rights was adopted). Rather, because "[t]he basic Amendment permits capital punishment of adolescent concept underlying the Eighth Amendment is nothing offenders. In Thompson v. Oklahoma, 487 U.S. 815, less than the dignity of man," the Amendment "must 101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988), a plurality of draw its meaning from the evolving standards of four Justices concluded that the Eighth Amendment decency that mark the progress of a maturing society." barred capital punishment of an offender for a crime [****65] Trop v. Dulles, 356 U.S. 86, 100-101, 2 L. Ed. committed before the age of 16. I concurred in that 2d 630, 78 S. Ct. 590 (1958) (plurality opinion). In judgment on narrower grounds. At the time, 32 state discerning those standards, we look to "objective factors legislatures had "definitely concluded that no 15-year- to the maximum possible extent." Coker, supra, at 592, old should be exposed to the threat [*591] of

Kyle Smith Page 23 of 47 543 U.S. 551, *591; 125 S. Ct. 1183, **1207; 161 L. Ed. 2d 1, ***40; 2005 U.S. LEXIS 2200, ****67 execution," and no legislature had affirmatively Amendment rule against capital punishment of 16- and endorsed such a practice. Id., at 849, 101 L. Ed. 2d 17-year-old offenders. See ibid. (citing Thompson, 702, 108 S. Ct. 2687 (O'Connor, J., concurring in supra, at 853-854, 101 L. Ed. 2d 702, 108 S. Ct. 2687 judgment). While acknowledging that a national (O'Connor, J., concurring in judgment)). consensus forbidding the execution of 15-year-old offenders "very likely" did exist, I declined to adopt that The Court has also twice addressed the constitutionality conclusion as a matter of constitutional law without of capital punishment of mentally retarded offenders. In clearer evidentiary support. [****68] Ibid. Nor, in my Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 view, could the issue be decided based on moral S. Ct. 2934 (1989), decided the same year as Stanford, proportionality arguments of the type advanced [**1208] we rejected the claim that the Eighth Amendment barred by the Court today. Granting the premise "that the execution of the mentally retarded. At that time, only adolescents are generally less blameworthy than adults two States specifically prohibited the practice, while 14 who commit similar crimes," I wrote, "it does not others did not have capital punishment at all. 492 U.S., necessarily follow that all 15-year-olds are incapable of at 334, 106 L. Ed. 2d 256, 109 S. Ct. 2934. Much had the moral culpability that would justify the imposition of changed when we revisited the question three Terms capital punishment." Id., at 853, 101 L. Ed. 2d 702, 108 ago in Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d S. Ct. 2687. Similarly, we had before us no evidence 335, 122 S. Ct. 2242 (2002). In Atkins, the Court "that 15-year-olds as a class are inherently incapable of reversed Penry and held that the Eighth Amendment being deterred from major crimes by the prospect of the forbids capital punishment of mentally retarded death penalty." Ibid. I determined instead that, in light of offenders. [****71] 536 U.S., at 321, 153 L. Ed. 2d 335, the strong but inconclusive evidence of a national 122 S. Ct. 2242. In the 13 years between Penry and consensus against capital punishment of under-16 Atkins, there had been a wave of legislation prohibiting offenders, concerns rooted in the Eighth Amendment the execution of such offenders. By the time we heard required that we apply a clear statement rule. Because Atkins, 30 States barred the death penalty for the the capital punishment statute in Thompson did not mentally retarded, and even among those States specify the minimum age at which commission of a theoretically permitting such punishment, very few had capital crime would be punishable by death, I concluded executed a mentally retarded offender in recent history. that the statute could not be read to authorize the death 536 U.S., at 314-316, 153 L. Ed. 2d 335, 122 S. Ct. penalty for a 15-year-old offender. [****69] Id., at 857- 2242. On the basis of this evidence, the Court 858, 101 L. Ed. 2d 702, 108 S. Ct. 2687. determined that it was "fair to say that a national consensus ha[d] developed against" the practice. Id., The next year, in Stanford v Kentucky, supra, the Court at 316, 153 L. Ed. 2d 335, 122 S. Ct. 2242. held that the [***41] execution of 16- or 17-year-old capital murderers did not violate the Eighth Amendment. [**1209] But our decision in Atkins did not rest solely on I again wrote separately, concurring in part and this tentative conclusion. Rather, the Court's concurring in the judgment. At that time, 25 States did independent moral judgment was dispositive. The Court not permit the execution of under-18 offenders, observed that mentally retarded persons suffer from including 13 that lacked the death penalty altogether. major cognitive and behavioral [*593] deficits, i.e., See id., at 370, 106 L. Ed. 2d 306, 109 S. Ct. 2969. "subaverage intellectual functioning" and "significant While noting that "[t]he day may come when there is limitations in adaptive skills such as communication, such general legislative rejection of the execution of 16- self-care, and self-direction that became manifest before or 17-year-old capital murderers that a clear national age 18." [****72] Id., at 318, 153 L. Ed. 2d 335, 122 S. consensus can be said to have developed," I concluded Ct. 2242. "Because of their impairments, [such persons] that that day had not yet arrived. Id., at 381-382, 106 L. by definition . . . have diminished capacities to Ed. 2d 306, 109 S. Ct. 2969. [*592] I reaffirmed my understand and process information, to communicate, to view that, beyond assessing the actions of legislatures abstract from mistakes [***42] and learn from and juries, the Court has a constitutional obligation to experience, to engage in logical reasoning, to control judge for itself whether capital punishment is a impulses, and to understand the reactions of others." proportionate response to the defendant's Ibid. We concluded that these deficits called into serious blameworthiness. Id., at 382, 106 L. Ed. 2d 306, 109 S. doubt whether the execution of mentally retarded Ct. 2969. Nevertheless, I [****70] concluded that offenders would measurably contribute to the principal proportionality arguments similar to those endorsed by penological goals that capital punishment is intended to the Court today did not justify a categorical Eighth serve--retribution and deterrence. Id., at 319-321, 153

Kyle Smith Page 24 of 47 543 U.S. 551, *593; 125 S. Ct. 1183, **1209; 161 L. Ed. 2d 1, ***42; 2005 U.S. LEXIS 2200, ****72

L. Ed. 2d 335, 122 S. Ct. 2242. Mentally retarded 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989). The Eighth offenders' impairments so diminish their personal moral Amendment provides no exception to this rule. On the culpability that it is highly unlikely that such offenders contrary, clear, predictable, and uniform constitutional could ever deserve the ultimate punishment, even in standards are especially desirable in this sphere. By cases of capital murder. Id., at 319, 153 L. Ed. 2d 335, affirming the lower court's judgment without so [**1210] 122 S. Ct. 2242. And these same impairments made it much as a slap on the [****75] hand, today's decision very improbable that the threat of the death penalty threatens to invite frequent and disruptive would deter mentally retarded persons from committing reassessments of our Eighth Amendment precedents. capital crimes. [****73] Id., at 319-320, 153 L. Ed. 2d 335, 122 S. Ct. 2242. Having concluded that capital [***43] B punishment of the mentally retarded is inconsistent with the Eighth Amendment, the Court "'le[ft] to the State[s] In determining whether the juvenile death penalty the task of developing appropriate ways to enforce the comports with contemporary standards of decency, our constitutional restriction upon [their] execution of inquiry begins with the "clearest and most reliable sentences.'" Id., at 317, 153 L. Ed. 2d 335, 122 S. Ct. objective evidence of contemporary values"--the actions 2242 (quoting Ford v. Wainwright, 477 U.S. 399, 416- of the Nation's legislatures. Penry, supra, at 331, 106 417, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986)). L. Ed. 2d 256, 109 S. Ct. 2934. As the Court emphasizes, the overall number of jurisdictions that II currently disallow the execution of under-18 offenders is the same as the number that forbade the execution of A mentally retarded offenders when Atkins was decided. [*595] Ante, at 564, 161 L. Ed. 2d, at 18-19. At Although the general principles that guide our Eighth present, 12 States and the District of Columbia do not Amendment jurisprudence afford some common have the death penalty, while an additional 18 States ground, I part ways with the Court in applying them to and the Federal Government authorize capital the case before us. As a preliminary matter, I take issue punishment but prohibit the execution of under-18 with the Court's failure to reprove, or even to offenders. See ante, at 580-581, 161 L. Ed. 2d, at 30 acknowledge, the Supreme Court of Missouri's (Appendix A). And here, as in Atkins, only a very small unabashed refusal to follow our [*594] controlling fraction of the States that permit capital punishment of decision in Stanford. The lower court concluded that, offenders within the relevant class has actually carried despite Stanford's clear holding and historical recency, out such an execution [****76] in recent history: Six our decision was no longer binding authority because it States have executed under-18 offenders in the 16 was premised on what the court deemed an obsolete years since Stanford, while five States had executed assessment of contemporary values. Quite apart from mentally retarded offenders in the 13 years prior to the merits of the constitutional question, this was clear Atkins. See Atkins, 536 U.S., at 316, 153 L. Ed. 2d 335, error. 122 S. Ct. 2242; V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile [****74] Because the Eighth Amendment "draw[s] its Crimes, January 1, 1973-December 31, 2004, No. 76, meaning from . . . evolving standards of decency," pp 15-23 (2005), available at Trop, 356 U.S., at 101, 2 L.Ed. 2d 630, 78 S. Ct. 590 http://www.law.onu.edu/faculty/streib/documents/JuvDe (plurality opinion), significant changes in societal mores athDec2004.pdf (last updated Jan. 31, 2005) (as visited over time may require us to reevaluate a prior decision. Feb. 25, 2005, and available in Clerk of Court's case Nevertheless, it remains "this Court's prerogative alone file) (hereinafter Streib). In these respects, the objective to overrule one of its precedents." State Oil Co. v. evidence in this case is, indeed, "similar, and in some Khan, 522 U.S. 3, 20, 139 L. Ed. 2d 199, 118 S. Ct. 275 respects parallel to," the evidence upon which we relied (1997) (emphasis added). That is so even where in Atkins. Ante, at 564, 161 L. Ed. 2d, at 18. subsequent decisions or factual developments may appear to have "significantly undermined" the rationale While the similarities between the two cases are for our earlier holding. United States v. Hatter, 532 undeniable, the objective evidence of national U.S. 557, 567, 149 L. Ed. 2d 820, 121 S. Ct. 1782 consensus is marginally weaker here. Most importantly, (2001); see also State Oil Co., supra, at 20, 139 L. Ed. in Atkins there was significant evidence of opposition to 2d 199, 118 S. Ct. 275; Rodriguez de Quijas v. the execution of the mentally retarded, but there was Shearson/American Express, Inc., 490 U.S. 477, 484, virtually no countervailing evidence of affirmative

Kyle Smith Page 25 of 47 543 U.S. 551, *595; 125 S. Ct. 1183, **1210; 161 L. Ed. 2d 1, ***43; 2005 U.S. LEXIS 2200, ****76 legislative support for this practice. [****77] Cf. 565.020.2 (2000); Va. Code Ann. § 18.2-10(a) (Lexis Thompson, 487 U.S., at 849, 101 L. Ed. 2d 702, 108 S. 2004). Furthermore, as the Court emphasized in Atkins Ct. 2687 (O'Connor, J., concurring in judgment) itself, 536 U.S., at 315, n. 18, 153 L. Ed. 2d 335, 122 S. (attributing significance to the fact that "no legislature in Ct. 2242, the pace of legislative action in this context this country has affirmatively and unequivocally has been considerably slower than it was with regard to endorsed" capital punishment of 15-year-old offenders). capital punishment of the mentally retarded. [*597] In The States that permitted such executions did so only the 13 years between our decisions in Penry and Atkins, because they had not enacted any prohibitory no fewer than 16 States banned the execution of legislation. Here, by contrast, at least seven States mentally retarded offenders. See [****80] Atkins, supra, have current statutes that specifically set 16 or 17 as the at 314-315, 153 L. Ed. 2d 335, 122 S. Ct. 2242. By minimum age at which [*596] commission of a capital comparison, since our decision 16 years ago in crime can expose the offender to the death penalty. See Stanford, only four States that previously permitted the ante, at 579-580, 161 L. Ed. 2d, at 29 (Appendix A). * execution of under-18 offenders, plus the Federal Five of these seven States presently have one [***44] Government, have legislatively reversed course, and or more juvenile offenders [**1211] on death row (six if one additional State's high court has construed the respondent is included in the count), see Streib 24-31, State's death penalty statute not to apply to under-18 and four of them have executed at least one under-18 offenders, see State v. Furman, 122 Wn. 2d 440, 458, offender in the past 15 years, see id., at 15-23. In all, 858 P.2d 1092, 1103 (1993) (en banc). The slower there are currently over 70 juvenile offenders on death pace of change is no doubt partially attributable, as the row in 12 different States (13 including respondent). Court says, to the fact that 12 States had already See id., at 11, 24-31. This evidence suggests some imposed a minimum age of 18 when Stanford was measure of continuing public support for the availability decided. See ante, at 566-567, 161 L. Ed. 2d, at 20. of the death penalty for [****78] 17-year-old capital Nevertheless, the extraordinary wave of legislative murderers. action leading up to our decision in Atkins provided strong evidence that the country truly had set itself [****79] Moreover, the Court in Atkins made clear that it against capital punishment of the mentally retarded. was "not so much the number of [States forbidding Here, by contrast, the halting pace of change gives execution of the mentally retarded] that [was] significant, reason for pause. but the consistency of the direction of change." 536 U.S., at 315, 153 L. Ed. 2d 335, 122 S. Ct. 2242. In To the extent that the objective evidence supporting contrast to the trend in Atkins, the States have not today's decision is similar to that in Atkins, this merely moved uniformly toward abolishing the juvenile death highlights the fact that such evidence is not dispositive penalty. Instead, since our decision in Stanford, two in either [****81] of the two cases. After all, as the Court States have expressly reaffirmed their support for this today confirms, ante, at 563, 574-575, 161 L. Ed. 2d, at practice by enacting statutes setting 16 as the minimum 18, 24-25, the Constitution requires that "'in the end our age for capital punishment. See Mo. Rev. Stat. § own judgment . . . be brought to bear'" in deciding whether the Eighth Amendment forbids a particular punishment, Atkins, supra, at 312, 153 L. Ed. 2d 335, * In 12 other States that have capital punishment, under-18 122 S. Ct. 2242 (quoting Coker, 433 U.S., at 597, 53 L. offenders can be subject to the death penalty as a result of Ed. 2d 982, 97 S. Ct. 2861 (plurality opinion)). This transfer statutes that permit such offenders to be tried as judgment is not merely a rubber stamp on the tally of adults for certain serious crimes. See ante, at 579-580, 161 legislative and jury actions. Rather, it is an integral part L. Ed. 2d, at 29 (Appendix A). As I observed in Thompson v. of the [***45] Eighth Amendment inquiry--and one that Oklahoma, 487 U.S. 815, 850-852, 101 L. Ed. 2d 702, 108 S. is entitled to independent weight in reaching our ultimate Ct. 2687 (1988) (opinion concurring in judgment): "There are decision. many reasons, having nothing whatsoever to do with capital punishment, that might motivate a legislature to provide as a Here, as in Atkins, the objective evidence of a national general matter for some [minors] to be channeled into the consensus is weaker than in most prior cases in which adult criminal justice process." Accordingly, while these 12 the Court has struck down a particular punishment States clearly cannot be counted as opposing capital under the Eighth Amendment. See Coker, supra, at punishment of under-18 offenders, the fact that they permit 595-596, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (plurality such punishment through this indirect mechanism does not necessarily show affirmative and unequivocal legislative opinion) (striking down death penalty for rape of an adult support for the practice. See ibid. [*598] woman, where only one jurisdiction authorized

Kyle Smith Page 26 of 47 543 U.S. 551, *598; 125 S. Ct. 1183, **1211; 161 L. Ed. 2d 1, ***45; 2005 U.S. LEXIS 2200, ****81 such punishment); [****82] Enmund, 458 U.S., at 2d, at 23. However, the Court argues that a categorical 792,73 L. Ed. 2d 1140, 102 S. Ct. 3368 (striking down age-based prohibition is justified as a prophylactic rule death penalty for certain crimes of aiding and abetting because "[t]he differences between juvenile and adult felony-murder, where only eight jurisdictions authorized offenders are too marked and well [***46] understood to such punishment); Ford v. Wainwright, 477 U.S., at risk allowing a youthful person to receive the death 408, 91 L. Ed. 2d 335, 106 [**1212] S.Ct. 2595 (striking penalty despite insufficient culpability." Ante, at 572- down capital punishment of the insane, where no 573, 161 L. Ed. 2d, at 24. jurisdiction permitted this practice). In my view, the objective evidence of national consensus, standing It is beyond cavil that juveniles as a class are generally alone, was insufficient to dictate the Court's holding in less mature, less responsible, and less fully formed than Atkins. Rather, the compelling moral proportionality adults, and that these differences bear on juveniles' argument against capital punishment of mentally comparative moral culpability. See, e.g., Johnson v. retarded offenders played a decisive role in persuading Texas, 509 U.S. 350, 367, 125 L. Ed. 2d 290, 113 S. Ct. the Court that the practice was inconsistent with the 2658 (1993) ("There is no dispute that a defendant's Eighth Amendment. Indeed, the force of the youth is a relevant mitigating circumstance"); [****85] proportionality argument in Atkins significantly bolstered id., at 376, 125 L. Ed. 2d 290, 113 S. Ct. 2658 the Court's confidence that the objective evidence in (O'Connor, J., dissenting) ("[T]he vicissitudes of youth that case did, in fact, herald the emergence of a genuine bear directly on the young offender's culpability and national consensus. Here, by contrast, the responsibility for the crime"); Eddings, 455 U.S., at 115- proportionality argument against the juvenile death 116, 71 L. Ed. 2d 1, 102 S. Ct. 869 ("Our history is penalty is so flawed that it can be given little, if any, replete with laws and judicial recognition that minors, analytical weight--it proves too weak to resolve the especially in their earlier years, generally are less lingering ambiguities in the [****83] objective evidence of mature and responsible than adults"). But even legislative consensus or to justify the Court's categorical accepting this premise, the Court's proportionality rule. argument fails to support its categorical rule.

C First, the Court adduces no evidence whatsoever in support of its sweeping conclusion, see ante, at 572, Seventeen-year-old murderers must be categorically 161 L. Ed. 2d, at 23, that it is only in "rare" cases, if exempted from capital punishment, the Court says, ever, that 17-year-old murderers are sufficiently mature because they "cannot with reliability be classified among and act with sufficient depravity to warrant the death the worst offenders." Ante, at 569, 161 L. Ed. 2d, at 21. penalty. The fact that juveniles are [**1213] generally That conclusion is premised on three perceived less culpable for their misconduct than adults does not differences between "adults," who have already reached necessarily mean that a 17-year-old murderer cannot be their 18th birthdays, and "juveniles," who have not. See sufficiently culpable to merit the death penalty. At most, ante, at 569-570, 161 L. Ed. 2d, at 21-22. First, the [*600] Court's argument suggests that the average juveniles lack maturity and responsibility and are more 17-year-old murderer is not as culpable as the average reckless than adults. Second, juveniles are more adult murderer. But an especially [****86] depraved vulnerable to outside influences because they have less juvenile offender may nevertheless be just as culpable control over their surroundings. And third, a juvenile's as many adult offenders considered bad enough to character is not as fully formed as that of an adult. deserve the death penalty. Similarly, the fact that the Based on these characteristics, the Court determines availability of the death penalty may be less likely to that 17-year-old capital murderers are not as [*599] deter a juvenile from committing a capital crime does blameworthy as adults guilty of similar crimes; that 17- not imply that this threat cannot effectively deter some year-olds are less likely than adults to be deterred by 17-year-olds from such an act. Surely there is an age the prospect of a death sentence; and that it is difficult below which no offender, no matter what his crime, can to conclude that a 17-year-old who commits even the be deemed to have the cognitive or emotional maturity most heinous of crimes is "irretrievably depraved." necessary to warrant the death penalty. But at least at [****84] Ante, at 570-572, 161 L. Ed. 2d, at 22-23. The the margins between adolescence and adulthood--and Court suggests that "a rare case might arise in which a especially for 17-year-olds such as respondent--the juvenile offender has sufficient psychological maturity, relevant differences between "adults" and "juveniles" and at the same time demonstrates sufficient depravity, appear to be a matter of degree, rather than of kind. It to merit a sentence of death." Ante, at 572, 161 L. Ed. follows that a legislature may reasonably conclude that

Kyle Smith Page 27 of 47 543 U.S. 551, *600; 125 S. Ct. 1183, **1213; 161 L. Ed. 2d 1, ***46; 2005 U.S. LEXIS 2200, ****86 at least some 17-year-olds can act with sufficient moral individuals. Although it may [**1214] be that many 17- culpability, and can be sufficiently deterred by the threat year-old murderers lack sufficient maturity to deserve of execution, that capital punishment may be warranted the death penalty, some juvenile murderers may be in an appropriate case. quite mature. Chronological age is not an unfailing measure of psychological development, and common Indeed, this appears to be just such a case. experience suggests that many 17-year-olds are more Christopher Simmons' murder of Shirley Crook was mature than the average young "adult." In short, the premeditated, wanton, and cruel in the extreme. Well class of offenders exempted from capital punishment by before he committed [****87] this crime, Simmons today's decision is too broad and too diverse to warrant declared that he wanted to kill someone. On several a categorical prohibition. Indeed, the age-based line occasions, he discussed with two friends (ages 15 and drawn by the Court is indefensibly arbitrary--it quite 16) his plan to burglarize a house and to murder the likely will protect a number of offenders who are mature victim by tying the victim up and pushing him from a enough to [*602] deserve the death penalty and may bridge. Simmons said they could "'get away with it'" well leave vulnerable many who are not. because they were minors. Brief for Petitioner 3. In accord with this plan, Simmons and his 15-year-old For purposes of proportionality analysis, 17-year-olds as accomplice broke into Mrs. Crook's home in the middle a class are qualitatively and materially different from the of the night, forced her from her bed, bound her, [***47] mentally retarded. "Mentally retarded" offenders, as we and drove her to a state park. There, they walked her to understood that category in Atkins, are defined by a railroad trestle spanning a river, "hog-tied" her with precisely the characteristics which render death an electrical cable, bound her face completely with duct excessive punishment. A mentally retarded person is, tape, and pushed her, still alive, from the trestle. She "by definition," one whose cognitive and behavioral drowned in the water below. Id., at 4. One can [*601] capacities have been proved to fall below a certain scarcely imagine the terror that this woman must have minimum. [****90] See Atkins, 536 U.S., at 318, 153 L. suffered throughout the ordeal leading to her death. Ed. 2d 335, 122 S. Ct. 2242; see also id., at 308, n. 3, Whatever can be said about the comparative moral 153 L. Ed. 2d 335, 122 S. Ct. 2242 (discussing culpability of 17-year-olds as a general matter, characteristics of mental retardation); id., at 317, and n. Simmons' actions unquestionably reflect "'a 22, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (leaving to the consciousness materially more "depraved" than that of' . States the development of mechanisms to determine . . the average murderer." [****88] Atkins, 536 U.S., at which offenders fall within the class exempt from capital 319, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (quoting punishment). Accordingly, for purposes of our decision Godfrey v. Georgia, 446 U.S. 420, 433, 64 L. Ed. 2d [***48] in Atkins, the mentally retarded are not merely 398, 100 S. Ct. 1759 (1980)). And Simmons' prediction less blameworthy for their misconduct or less likely to be that he could murder with impunity because he had not deterred by the death penalty than others. Rather, a yet turned 18--though inaccurate--suggests that he did mentally retarded offender is one whose demonstrated take into account the perceived risk of punishment in impairments make it so highly unlikely that he is deciding whether to commit the crime. Based on this culpable enough to deserve the death penalty or that he evidence, the sentencing jury certainly had reasonable could have been deterred by the threat of death, that grounds for concluding that, despite Simmons' youth, he execution is not a defensible punishment. There is no "ha[d] sufficient psychological maturity" when he such inherent or accurate fit between an offender's committed this horrific murder, and "at the same time chronological age and the personal limitations which the demonstrate[d] sufficient depravity, to merit a sentence Court believes make capital punishment excessive for of death." Ante, at 572, 161 L. Ed. 2d, at 23. 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are The Court's proportionality argument suffers from a somehow equivalent to mentally retarded persons second and closely related defect: It fails to establish with [****91] regard to culpability or susceptibility to that the differences in maturity between 17-year-olds deterrence. Seventeen-year-olds may, on average, be and young "adults" are both universal enough and less mature than adults, but that lesser maturity simply significant enough to justify a bright-line prophylactic cannot be equated with the major, lifelong impairments rule against capital punishment of the former. The suffered by the mentally retarded. Court's analysis is premised on differences in the aggregate between juveniles and adults, which The proportionality issues raised by the Court clearly frequently do not hold true when [****89] comparing implicate Eighth Amendment concerns. But these

Kyle Smith Page 28 of 47 543 U.S. 551, *602; 125 S. Ct. 1183, **1214; 161 L. Ed. 2d 1, ***48; 2005 U.S. LEXIS 2200, ****91 concerns may properly be addressed not by means of punishment for under-18 offenders. Very few, if any, an arbitrary, categorical age-based rule, but rather countries other than the United States now permit this through individualized [*603] sentencing in which juries practice in law or in fact. See ante, at 576-577, 161 L. are required to give appropriate mitigating weight to the Ed. 2d, at 22-23. While acknowledging that the actions defendant's immaturity, his susceptibility to outside and views of other countries do not dictate the outcome pressures, his cognizance of the consequences of his of our Eighth Amendment inquiry, the Court asserts that actions, and so forth. In that way the constitutional "the overwhelming weight of international opinion response can be tailored to the specific problem it is against the juvenile death penalty . . . [****94] does meant to remedy. The Eighth Amendment guards provide respected and significant confirmation for [its] against the execution of those who are "insufficient[ly] own conclusions." Ante, at 578, 161 L. Ed. 2d, at 27. culpab[le]," see ante, at 573, 161 L. Ed. 2d, at 24, in Because I do not believe that a genuine national significant part, by requiring sentencing that "reflect[s] a consensus against the juvenile death penalty has yet reasoned moral response to the defendant's developed, and because I do not believe the Court's background, character, and crime." [****92] California moral proportionality argument justifies a categorical, v. Brown, 479 U.S. 538, 545, 93 L. Ed. 2d 934, 107 S. age-based constitutional rule, I can assign no such Ct. 837 (1987) (O'Connor, J., concurring). Accordingly, confirmatory role to the international consensus the sentencer in a capital case must be permitted to described by the Court. In short, the evidence of an give full effect to all constitutionally relevant mitigating international consensus does not alter my determination evidence. See Tennard v. Dretke, 542 U.S. 274, 283- that the Eighth Amendment does not, at this time, forbid 285, 159 L. Ed. 2d 384, 124 S. Ct. 2562 (2004); Lockett capital punishment of 17-year-old murderers in all v. Ohio, 438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. cases. 2954 (1978) (plurality opinion). A [**1215] defendant's youth or immaturity is, of course, a paradigmatic Nevertheless, I disagree with Justice Scalia's example of such evidence. See Eddings, 455 U.S., at contention, post, at 622-628, 161 L. Ed. 2d, at 59-64 115-116, 71 L. Ed. 2d 1, 102 S. Ct. 869. (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Although the prosecutor's apparent attempt to use Over the course of nearly half a century, the Court has respondent's youth as an aggravating circumstance in consistently referred to foreign and international law as this case is troubling, that conduct was never relevant to its assessment of evolving standards of challenged with specificity in the lower courts and is not decency. See [****95] Atkins, supra, at 317, n. 21, 153 directly at issue here. As the Court itself suggests, such L. Ed. 2d 335, 122 S. Ct. 2242; Thompson, 487 U.S., at "overreaching" would best be addressed, if at all, 830-831, and n. 31, 101 L. Ed. 2d 702, 108 S. Ct. 2687 through a more narrowly tailored remedy. See ante, at (plurality opinion); Enmund, 458 U.S., at 796-797, n. 573, 161 L. Ed. 2d, at 24. The Court argues that 22, 73 L. Ed. 2d 1140, 102 S. Ct. 3368; Coker, 433 sentencing juries cannot accurately evaluate a youthful U.S., at 596, n. 10, 53 L. Ed. 2d 982, 97 S. Ct. 2861 offender's maturity or give appropriate weight to the (plurality opinion); Trop, 356 U.S., at 102-103, 2 L. Ed. mitigating characteristics [****93] related to youth. But, 2d 630, 78 S. Ct. 590 (plurality opinion). This inquiry again, the Court presents no real evidence--and the reflects the special character of the Eighth record appears to contain none--supporting this claim. Amendment, [*605] which, as the Court has long held, Perhaps more importantly, the Court fails to explain why draws its meaning directly from the maturing values of this duty should be so different from, or so much more civilized society. Obviously, American law is distinctive difficult than, that of assessing and giving proper effect in many respects, not least where the specific provisions to any other qualitative capital sentencing factor. I of our Constitution and the history of its exposition so would not be so quick to conclude that the constitutional dictate. Cf. post, at 624-625, 161 L. Ed. 2d, at 61-62 safeguards, the sentencing juries, and the trial [***49] (Scalia, J., dissenting) (discussing distinctively American judges upon [*604] which we place so much reliance in rules of law related to the Fourth Amendment and the all capital cases are inadequate in this narrow context. Establishment Clause). But this Nation's evolving understanding of human dignity certainly [**1216] is D neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the I turn, finally, to the Court's discussion of foreign and contrary, we should not be surprised [****96] to find international law. Without question, there has been a congruence between domestic and international values, global trend in recent years towards abolishing capital especially where the international community has

Kyle Smith Page 29 of 47 543 U.S. 551, *605; 125 S. Ct. 1183, **1216; 161 L. Ed. 2d 1, ***49; 2005 U.S. LEXIS 2200, ****96 reached clear agreement--expressed in international law support the rule the Court adopts today. There is no or in the domestic laws of individual countries--that a question that "the chronological age of a minor is itself a particular form of punishment is inconsistent with relevant mitigating factor of great weight," Eddings, 455 fundamental human rights. At least, the existence of an U.S., at 116, 71 L. Ed. 2d 1, 102 S. Ct. 869, and that international consensus of this nature can serve to sentencing juries must be given an opportunity carefully confirm the reasonableness of a consonant and genuine to consider a defendant's age and maturity in deciding [***50] American consensus. The instant case presents whether to assess the death penalty. But the mitigating no such domestic consensus, however, and the recent characteristics associated with youth do not justify an emergence of an otherwise global consensus does not absolute age limit. A legislature can reasonably alter that basic fact. conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death * * * penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so In determining whether the Eighth Amendment permits unable accurately to assess a 17-year-old defendant's capital punishment of a particular offense or class of [*607] maturity, or so incapable of giving proper weight offenders, we must look to whether such punishment is to youth as a mitigating factor, that the Eighth consistent with contemporary standards of decency. We Amendment requires the bright-line rule imposed today. are obligated to weigh both the objective evidence of In the end, the Court's flawed proportionality [****99] societal values and our own judgment as to whether argument simply [**1217] cannot bear the weight the death is an excessive sanction in the context at hand. Court would place upon it. In the instant case, the objective evidence is inconclusive; standing alone, it does not demonstrate Reasonable minds can differ as to the minimum age at that our society has repudiated capital punishment of which commission of a serious crime should expose 17-year-old offenders in all cases. [****97] Rather, the [***51] the defendant to the death penalty, if at all. actions of the Nation's legislatures suggest that, Many jurisdictions have abolished capital punishment although a clear and durable national consensus altogether, while many others have determined that against this practice may in time [*606] emerge, that even the most heinous crime, if committed before the day has yet to arrive. By acting so soon after our age of 18, should not be punishable by death. Indeed, decision in Stanford, the Court both pre-empts the were my office that of a legislator, rather than a judge, democratic debate through which genuine consensus then I, too, would be inclined to support legislation might develop and simultaneously runs a considerable setting a minimum age of 18 in this context. But a risk of inviting lower court reassessments of our Eighth significant number of States, including Missouri, have Amendment precedents. decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. To be sure, the objective evidence supporting today's Without a clearer showing that a genuine national decision is similar to (though marginally weaker than) consensus forbids the execution of such offenders, this the evidence before the Court in Atkins. But Atkins could Court should not substitute its own "inevitably subjective not have been decided as it was based solely on such evidence. Rather, the compelling proportionality judgment" on how best to resolve this difficult moral argument against capital punishment of the mentally question for the judgments of the Nation's retarded played a decisive role in the Court's Eighth democratically elected legislatures. See [****100] Amendment ruling. Moreover, the constitutional rule Thompson, 487 U.S., at 854, 101 L. Ed. 2d 702, 108 S. adopted in Atkins was tailored to this proportionality Ct. 2687 (O'Connor, J., concurring in judgment). I argument: It exempted from capital punishment a respectfully dissent. defined group of offenders whose proven impairments Justice Scalia, with whom The Chief Justice and rendered it highly unlikely, and perhaps impossible, that Justice Thomas join, dissenting. they could act with the degree of culpability necessary to deserve death. And Atkins [****98] left to the States In urging approval of a constitution that gave life-tenured the development of mechanisms to determine which judges the power to nullify laws enacted by the people's individual offenders fell within this class. representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, In the instant case, by contrast, the moral proportionality since "[t]he judiciary . . . ha[s] neither FORCE nor WILL arguments against the juvenile death penalty fail to but merely judgment." The Federalist No. 78, p 465 (C.

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Rossiter ed. 1961). But Hamilton had in mind a 630, 78 S. Ct. 590 (1958). We have held that this traditional judiciary, "bound down by strict rules and determination should be based on "objective indicia that precedents which serve to define [*608] and point out reflect the public attitude toward a given sanction"-- their duty in every particular case that comes before namely, "statutes passed by society's elected them." Id., at 471. Bound down, indeed. What a representatives." Stanford v. Kentucky, 492 U.S. 361, mockery today's opinion makes of Hamilton's 370, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989) (internal expectation, announcing the Court's conclusion that the quotation marks omitted). As in Atkins v. Virginia, 536 meaning of our Constitution has changed over the past U.S. 304, 312, 153 L. Ed. 2d 335, 122 S. Ct. 2242 15 years--not, mind you, that this Court's decision 15 (2002), the Court dutifully recites this test and claims years ago was wrong, but that the Constitution has halfheartedly that a national consensus has emerged changed. The Court reaches this implausible result by since our decision in Stanford, because 18 States--or purporting to advert, not to the [****101] original meaning 47% of States that permit capital punishment--now have of the Eighth Amendment, but to "the evolving standards legislation prohibiting the execution [****103] of of decency," ante, at 561, 161 L. Ed. 2d, at 16 (internal offenders under 18, and because all of 4 States have quotation marks omitted), of our national society. It then adopted such legislation since Stanford. See ante, at finds, on the flimsiest of grounds, that a national 565, 161 L. Ed. 2d, at 19. consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, [****104] Words have no meaning if the views of less the Court says in so many words that what our people's than 50% of death penalty States can constitute a laws say about the issue does not, in the last analysis, national consensus. See Atkins, supra, at 342-345, matter: "[I]n the end our own judgment will be brought to 153 L. Ed. 2d 335, 122 S. Ct. 2242 (Scalia, J., bear on the question of the acceptability of the death dissenting). Our previous cases have required penalty under the Eighth Amendment." Ante, at 563, overwhelming opposition to a challenged practice, 161 L. Ed. 2d, at 18 (internal quotation marks omitted). generally over a long period of time. In Coker v. The Court thus proclaims itself sole arbiter of our Georgia, 433 U.S. 584, 595-596, 53 L. Ed. 2d 982, 97 S. Nation's moral standards--and in the course of Ct. 2861 (1977), a plurality concluded the Eighth discharging that awesome responsibility purports to take Amendment prohibited capital punishment for rape of an guidance from the views of foreign courts and adult woman where only one jurisdiction authorized legislatures. Because I do not believe that the meaning such punishment. The plurality also observed that "[a]t of our Eighth Amendment, any more than the meaning no time in the last 50 years ha[d] a majority of [*610] of other provisions of our Constitution, should be States authorized death as a punishment for rape." Id., determined by the subjective views of five Members of at 593, 53 L. Ed. 2d 982, 97 S. Ct. 2861. In Ford v. this Court and like-minded foreigners, I dissent. Wainwright, 477 U.S. 399, 408, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986), we held execution of the insane I unconstitutional, tracing the roots of this prohibition to the common law and noting that "no State in the union [****102] In determining that capital punishment [***52] permits the execution of the insane." In [****105] of offenders who committed murder before age 18 is Enmund v. Florida, 458 U.S. 782, 792, 73 L. Ed. 2d "cruel and unusual" under the Eighth Amendment, the 1140, 102 S. Ct. 3368 (1982), we invalidated capital Court first considers, in accordance with our modern punishment imposed for participation in a robbery in (though in my view mistaken) jurisprudence, whether which an accomplice committed murder, because 78% there is a "national consensus," ibid. (internal quotation marks omitted), [**1218] that laws allowing such [*609] executions contravene our modern "standards of As we have noted in prior cases, the evidence is unusually decency," 1 Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d clear that the Eighth Amendment was not originally understood to prohibit capital punishment for 16- and 17-year- old offenders. See Stanford v. Kentucky, 492 U.S. 361, 368, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989). At the time the 1 The Court ignores entirely the threshold inquiry in Eighth Amendment was adopted, the death penalty could determining whether a particular punishment complies with the theoretically be imposed for the crime of a 7-year-old, though Eighth Amendment: whether it is one of the "modes or acts of there was a rebuttable presumption of incapacity to commit a punishment that had been considered cruel and unusual at the capital (or other) felony until the age of 14. See ibid. (citing 4 time that the Bill of Rights was adopted." Ford v. Wainwright, W. Blackstone, Commentaries *23-*24; 1 M. Hale, Pleas of the 477 U.S. 399, 405, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986). Crown 24-29 (1800)).

Kyle Smith Page 31 of 47 543 U.S. 551, *610; 125 S. Ct. 1183, **1218; 161 L. Ed. 2d 1, ***52; 2005 U.S. LEXIS 2200, ****105 of all death penalty States prohibited this punishment. 2 [****108] indeed, some even require that juveniles as Even there we expressed some hesitation, because the young as 14 be tried as adults if they are charged with legislative judgment was "neither 'wholly unanimous murder. 3 ) The attempt by the Court to turn its among state legislatures,' . . . nor as compelling as the remarkable minority consensus into a faux majority by legislative judgments considered in Coker." Id., at 793, counting Amishmen is an act of nomological 73 [***53] L. Ed. 2d 1140, 102 S. Ct. 3368. By contrast, desperation. agreement among 42% of death penalty States in Stanford, which the Court appears to believe was [***54] Recognizing that its national-consensus correctly decided at the time, ante, at 574, 161 L. Ed. argument was weak compared with our earlier cases, 2d, at 24-25, was insufficient to show a national the Atkins Court found additional support in the fact that consensus. See Stanford, supra, at 372, 106 L. Ed. 2d 16 States had prohibited execution of mentally retarded 306, 109 S. Ct. 2969. individuals since [*612] Penry v. Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989). Atkins, In an attempt to keep afloat its implausible assertion of 536 U.S., at 314-316, 153 L. Ed. 2d 335, 109 S. Ct. national consensus, the Court throws overboard a 2242. Indeed, the Atkins Court distinguished Stanford proposition well established in our Eighth Amendment on that very ground, explaining that "[a]lthough we jurisprudence. "It should be observed," the Court says, decided Stanford on the same day as Penry, apparently "that the Stanford Court [**1219] should have only two state legislatures have raised the threshold age considered those States that had abandoned the death for imposition of the death penalty." 536 U.S., at 315, n. penalty altogether [****106] as part of the consensus 18, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (emphasis against the juvenile death penalty . . .; a State's decision added). Now, the Court says a legislative change in to bar the death penalty altogether of necessity four States is "significant" enough to trigger a demonstrates a judgment that the death penalty is constitutional prohibition. 4 [****109] Ante, at 566, 161 L. inappropriate for all offenders, including juveniles." Ed. 2d, at 19. It is amazing to [**1220] think that this Ante, at 574, 161 L. Ed. 2d, at 25. The insinuation that the Court's new method of counting contradicts only "the Stanford Court" is misleading. None of our cases 2 See Alaska Stat. § 47.12.030 (Lexis 2002); Haw. Rev. Stat. § dealing with an alleged constitutional limitation upon the 571-22 (1999); Iowa Code § 232.45 (2003); Me. Rev. Stat. death penalty has counted, as States supporting a Ann., Tit. 15, § 3101(4) (West 2003); Mass. Gen. Laws Ann., consensus in favor of that limitation, States that have ch. 119, § 74 (West 2003); Mich. Comp. Laws Ann. § 764.27 eliminated the death penalty entirely. See Ford, supra, (West 2000); Minn. Stat. § 260B.125 (2004); N. D. Cent. Code at 408, n. 2, 91 L. Ed. 335, 106 S. Ct. 2595; Enmund, § 27-20-34 (Lexis Supp 2003); R. I. Gen. Laws § 14-1-7 (Lexis supra, at 789, 73 L. Ed. 2d 1140, 102 S. Ct. 3368; 2002); Vt. Stat. Ann., Tit. 33, § 5516 (Lexis 2001); W. Va. Coker, supra, at 594, 53 L. Ed. 2d 982, 97 S. Ct. 2861. Code § 49-5-10 (Lexis 2004); Wis. Stat. § 938.18 (2003-2004); And with good reason. Consulting States that bar the see also National Center for Juvenile Justice, Trying and death penalty concerning the necessity of making an Sentencing Juveniles as Adults: An Analysis of State Transfer and Blended Sentencing Laws 1 (Oct. 2003). The District of exception to the penalty [*611] for offenders under 18 is Columbia is the only jurisdiction without a death penalty that rather like including old-order Amishmen in a consumer- specifically exempts under-18 offenders from its harshest preference poll on the electric car. Of course they don't sanction--life imprisonment without parole. See D. C. Code § like it, but that sheds no light whatever on the point at 22-2104 (West 2001). issue. That 12 States favor [****107] no executions says something about consensus against the death penalty, 3 See Mass. Gen. Laws Ann., ch. 119, § 74 (West 2003); N. D. but nothing--absolutely nothing--about consensus that Cent. Code § 27-20-34 (Lexis Supp. 2003); W. Va. Code § 49- offenders under 18 deserve special immunity from such 5-10 (Lexis 2004). a penalty. In repealing the death penalty, those 12 States considered none of the factors that the Court 4 As the Court notes, Washington State's decision to prohibit puts forth as determinative of the issue before us today- executions of offenders under 18 was made by a judicial, not -lower culpability of the young, inherent recklessness, legislative, decision. State v. Furman, 122 Wn. 2d 440, 459, 858 P.2d 1092, 1103 (1993), construed the State's death lack of capacity for considered judgment, etc. What penalty statute--which did not set any age limit--to apply only might be relevant, perhaps, is how many of those States to persons over 18. The opinion found that construction permit 16- and 17-year-old offenders to be treated as necessary to avoid what it considered constitutional difficulties, adults with respect to noncapital offenses. (They all do; and did not purport to reflect popular sentiment. It is irrelevant to the question of changed national consensus.

Kyle Smith Page 32 of 47 543 U.S. 551, *612; 125 S. Ct. 1183, **1220; 161 L. Ed. 2d 1, ***54; 2005 U.S. LEXIS 2200, ****109 subtle shift in numbers can take the issue entirely off the (Lexis 2004). The people of Arizona 5 [****112] and table for legislative debate. Florida 6 have [*614] done the same by ballot initiative. [**1221] Thus, even States that have not executed an I also doubt whether many of the legislators who voted under-18 offender in recent years unquestionably favor to change the laws in those four States would have the possibility of capital punishment in some done so if they had known their decision would (by the circumstances. pronouncement of this Court) be rendered irreversible. After all, legislative support for capital punishment, in The Court's reliance on the infrequency of executions any form, has surged [****110] and ebbed throughout for under-18 murderers, ante, at 564-565, 567, 161 L. our Nation's history. As Justice O'Connor has Ed. 2d, at 18-19, 20, credits an argument that this Court explained: considered and explicitly rejected in Stanford. That infrequency is explained, we accurately said, both by "The history of the death penalty instructs that there "the undisputed fact that a far smaller is danger in inferring a settled societal consensus percentage [****113] of capital crimes are committed by from statistics like those relied on in this case. In persons under 18 than over 18," 492 U.S., at 374, 106 1846, Michigan became the first State to abolish L. Ed. 2d 306, 109 S. Ct. 2969, and by the fact that the death penalty . . . . In succeeding decades, juries are required at sentencing to consider the other American States continued the trend towards offender's youth as a mitigating factor, see Eddings v. abolition . . . . Later, and particularly after World Oklahoma, 455 U.S. 104, 115-116, 71 L. Ed. 2d 1, 102 War II, there ensued a steady and dramatic decline S. Ct. 869 (1982). Thus, "it is not only possible, but in executions . . . . In the 1950's and 1960's, more overwhelmingly probable, that the very considerations States abolished or radically restricted capital which induce [respondent] and [his] supporters to punishment, and executions ceased completely for believe that death should never be imposed on several years beginning in 1968. . . . offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed." Stanford, [*613] "In 1972, when this Court heard arguments supra, at 374, 106 L. Ed. 2d 306, 109 S. Ct. 2969. on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus. . . . We now know that any 5 In 1996, Arizona's Ballot Proposition 102 exposed under-18 inference of a societal consensus rejecting the murderers to the death penalty by automatically transferring death penalty would have been mistaken. But had them out of juvenile courts. The statute implementing the this Court then declared the existence of such a proposition required the county attorney to "bring a criminal consensus, and outlawed capital punishment, prosecution against a juvenile in the same manner as an adult legislatures would very likely not have been able to if the juvenile is fifteen, sixteen or seventeen years of age and revive it. [****111] The mistaken premise of the is accused of . . . first degree murder." Ariz. Rev. Stat. Ann. § decision would have been frozen into constitutional 13-501 (West 2001). The Arizona Supreme Court has added law, making it difficult to refute and even more to this scheme a constitutional requirement that there be an difficult to reject." Thompson v. Oklahoma, 487 individualized assessment of the juvenile's maturity at the time U.S. 815, 854-855, 101 L. Ed. 2d 702, 108 S. Ct. of the offense. See State v. Davolt, 207 Ariz. 191, 214-216, 2687 (1988) (opinion concurring in judgment). 84 P. 3d 456, 479-481 (2004).

6 Relying on such narrow margins is especially Florida voters approved an amendment to the State Constitution, which changed the wording from "cruel or inappropriate in light of the fact that a number of unusual" to "cruel and unusual," Fla. Const., Art. I, § 17 legislatures and voters have expressly affirmed their (2003). See Commentary to 1998 Amendment, 25B Fla. Stat. support for capital punishment [***55] of 16- and 17- Ann., p 180 (West 2004). This was a response to a Florida year-old offenders since Stanford. Though the Court is Supreme Court ruling that "cruel or unusual" excluded the correct that no State has lowered its death penalty age, death penalty for a defendant who committed murder when he both the Missouri and Virginia Legislatures--which, at was younger than 17. See Brennan v. State, 754 So. 2d 1, 5 the time of Stanford, had no minimum age requirement-- (1999). By adopting the federal constitutional language, expressly established 16 as the minimum. Mo. Rev. Florida voters effectively adopted our decision in Stanford v. Stat. § 565.020.2 (2000); Va. Code Ann. § 18.2-10(a) Kentucky, 492 U.S. 361, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (1989). See Weaver, Word May Allow Execution of 16-Year- Olds, Miami Herald, Nov. 7, 2002, p 7B.

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It is, furthermore, unclear that executions of the relevant views 7 --was repudiated in Stanford for the very good age group have decreased since we decided Stanford. reason [*616] that it has no foundation in law or logic. If Between 1990 and 2003, 123 of 3,599 death sentences, the Eighth Amendment set forth an ordinary rule of law, or 3.4%, were given to individuals who committed it would indeed be the role of this Court to say what the crimes before reaching age 18. V. Streib, The Juvenile law is. But the Court having pronounced that the Eighth Death Penalty Today: Death Sentences and Executions Amendment is an ever-changing reflection of [****116] for Juvenile Crimes, January 1, 1973-September 30, "the evolving standards of decency" of our society, it 2004, No. 75, p 9 (Table 3) (last updated Oct. 5, 2004), makes no sense for the Justices then to prescribe those http://www.law.onu.edu/faculty/streib/documents/JuvDe standards rather than discern them from the practices of athSept302004.pdf (all [****114] Internet materials as our people. On the evolving-standards hypothesis, the visited Jan. 12, 2005, and available in Clerk of Court's only legitimate function of this Court is to identify a case file) (hereinafter Juvenile Death Penalty Today). moral consensus of the American people. By what [*615] By contrast, only 2.1% of those sentenced to conceivable warrant can nine lawyers presume to be the death between 1982 and 1988 committed [***56] the authoritative conscience of the Nation? 8 crimes when they were under 18. See Stanford, supra, at 373, 106 L. Ed. 2d 306, 109 S. Ct. 2969 (citing V. [****117] The reason for insistence on legislative Streib, Imposition of Death Sentences for Juvenile primacy is obvious and fundamental: "'[I]n a democratic Offenses, January 1, 1982, Through April 1, 1989, p 2 society [***57] legislatures, not courts, are constituted to (paper for Cleveland-Marshall College of Law, April 5, respond to the will and consequently the moral values of 1989)). As for actual executions of under-18 offenders, the people.'" Gregg v. Georgia, 428 U.S. 153, 175-176, they constituted 2.4% of the total executions since 1973. 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976) (joint opinion of Juvenile Death Penalty Today 4. In Stanford, we noted Stewart, Powell, and Stevens, JJ.) (quoting Furman v. that only 2% of the executions between 1642 and 1986 Georgia, 408 U.S. 238, 383, 33 L. Ed. 2d 346, 92 S. Ct. were of under-18 offenders and found that that lower 2726 (1972) (Burger, C. J., dissenting)). For a similar number did not demonstrate a national consensus reason we have, in our determination of society's moral against the penalty. 492 U.S., at 373-374, 106 L. Ed. standards, consulted the practices of sentencing juries: 2d 306, 109 S. Ct. 2969 (citing V. Streib, Death Penalty Juries "'maintain a link between contemporary for Juveniles 55, 57 (1987)). Thus, the numbers of community values and the penal system'" that this Court under-18 offenders subjected to the death penalty, cannot claim for itself. Gregg, supra, at 181, 49 L. Ed. though low compared with adults, have either held 2d 859, 96 S. Ct. 2909 (quoting Witherspoon v. Illinois, steady or slightly increased since Stanford. These 391 U.S. 510, 519, n. 15, 20 L. Ed. 2d 776, 88 S. Ct. statistics in no way support [****115] the action the Court 1770 (1968)). takes today. Today's opinion provides a perfect example of why II

Of course, the real force driving today's decision is not 7 the actions of four state legislatures, but the Court's See, e.g., Enmund v. Florida, 458 U.S. 782, 801, 73 L. Ed. "'"own judgment"'" that murderers younger than 18 can 2d 1140, 102 S. Ct. 3368 (1982) ("[W]e have no reason to disagree with th[e] judgment [of the state legislatures] for never be as morally culpable as older counterparts. purposes of construing and applying the Eighth Ante, at 563, 161 L. Ed. 2d, at 18 (quoting Atkins, 536 Amendment"); Coker v. Georgia, 433 U.S. 584, 597, 53 L. U.S., at 312, 153 L. Ed. 335, 122 S. Ct. 2242 (in turn Ed. 2d 982, 97 S. Ct. 2861 (1977) (plurality opinion) ("[T]he quoting Coker, 433 U.S., at 597, 53 L. Ed. 2d 982, 97 legislative rejection of capital punishment for rape strongly S. Ct. 2861 (plurality opinion))). The Court claims that confirms our own judgment"). this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating 8 Justice O'Connor agrees with our analysis that no national Stanford," ante, at 563, 161 L. Ed. 2d, at 18. That consensus exists here, ante, at 594-598, 161 L. Ed. 2d, at 43- supposed [**1222] rule--which is reflected solely in dicta 45 (dissenting opinion). She is nonetheless prepared (like the and never once in a holding that purports to supplant majority) to override the judgment of America's legislatures if it the consensus of the American people with the Justices' contradicts her own assessment of "moral proportionality," ante, at 598, 161 L. Ed. 2d, at 45. She dissents here only because it does not. The votes in today's case demonstrate that the offending of selected lawyers' moral sentiments is not a predictable basis for law--much less a democratic one.

Kyle Smith Page 34 of 47 543 U.S. 551, *616; 125 S. Ct. 1183, **1222; 161 L. Ed. 2d 1, ***57; 2005 U.S. LEXIS 2200, ****117 judges are ill equipped to make the type of legislative and conflicting views, courts--which [***58] can only judgments the Court insists on making here. To support consider the limited evidence on the record before its opinion that States should be prohibited from them--are ill equipped to determine which view of imposing the death [*617] penalty on anyone science is the right one. Legislatures "are better who [****118] committed murder before age 18, the qualified to weigh and 'evaluate the results of statistical Court looks to scientific and sociological studies, picking studies in terms of their own local conditions and with a and choosing those that support its position. It never flexibility of approach that is not available to the courts.'" explains why those particular studies are McCleskey v. Kemp, 481 U.S. 279, 319, 95 L. Ed. 2d methodologically sound; none was ever entered into 262, 107 S. Ct. 1756 (1987) (quoting Gregg, supra, at evidence or tested in an adversarial proceeding. As 186, 49 L. Ed. 2d 859, 96 S. Ct. 2909). The Chief Justice has explained: Even putting aside questions of methodology, the "[M]ethodological and other errors can affect the studies cited by the Court offer scant support for a reliability and validity of estimates about the categorical prohibition of the death penalty for opinions and attitudes of a population derived from murderers under 18. At most, these studies conclude various sampling techniques. Everything from that, on average, or in most cases, persons under 18 variations in the survey methodology, such as the are unable to take moral responsibility for their actions. choice of the target population, the sampling design Not one of the cited studies opines that all individuals used, the questions asked, and the statistical under 18 are unable to appreciate the nature of their analyses used to interpret the data can skew the crimes. results." Atkins, supra, at 326-327, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (dissenting opinion) (citing R. Moreover, the cited studies describe only adolescents Groves, Survey Errors and Survey [**1223] Costs who engage in risky or antisocial behavior, as many (1989); 1 C. Turner & E. Martin, Surveying young people do. Murder, however, [****121] is more Subjective Phenomena (1984)). than just risky or antisocial behavior. It is entirely consistent to believe that young people often act In other words, all the Court has done today, to borrow impetuously and lack judgment, but, at the same time, from another context, is to look over the heads of the to believe that those who commit premeditated murder crowd and pick out its friends. Cf. [****119] Conroy v. are--at least sometimes--just as culpable as adults. Aniskoff, 507 U.S. 511, 519, 123 L. Ed. 2d 229, 113 S. Christopher Simmons, who was only seven months shy Ct. 1562 (1993) (Scalia, J., concurring in judgment). of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand--"[i]n chilling, callous We need not look far to find studies contradicting the terms," as the Court puts it, ante, at 556, 161 L. Ed. 2d, Court's conclusions. As petitioner points out, the at 13--the murder he planned to commit. He then broke American Psychological Association (APA), which into the home of an innocent woman, bound her with claims in this case that scientific evidence shows duct tape and electrical wire, and threw her off a bridge persons under 18 lack the ability to take moral alive and conscious. Ante, at 556-557, 161 L. Ed. 2d, responsibility for their decisions, has previously taken at 13. In their amici brief, the States of Alabama, precisely the opposite position before this very Court. In Delaware, Oklahoma, Texas, Utah, and Virginia offer its brief in Hodgson v. Minnesota, 497 U.S. 417, 111 L. additional examples [*619] of murders committed by Ed. 2d 344, 110 S. Ct. 2926 (1990), the APA found a individuals under 18 that involve truly monstrous acts. "rich body of research" showing that juveniles are In Alabama, two 17-year-olds, one 16-year-old, and one mature enough to decide whether to obtain an abortion 19-year-old picked up a female hitchhiker, threw bottles without parental involvement. Brief for APA as Amicus at her, and kicked and stomped her for approximately Curiae, O. T. 1989, No. 88-805 etc., p 18. The APA 30 minutes until she died. They then sexually assaulted brief, citing psychology treatises and studies too her lifeless body and, when [****122] they were numerous to list here, asserted: "[B]y middle finished, [**1224] threw her body off a cliff. They later adolescence (age 14-15) young people develop abilities returned to the crime scene to mutilate her corpse. See similar to adults in reasoning [*618] about moral Brief for Alabama et al. as Amici Curiae 9-10; see also dilemmas, understanding social rules and laws, [and] Loggins v. State, 771 So. 2d 1070, 1074-1075 (Ala. reasoning about interpersonal relationships and Crim. App. 1999); Duncan v. State, 827 So. 2d 838, interpersonal problems." Id., at 19-20 [****120] (citations 840-841 (Ala. Crim. App. 1999). Other examples in the omitted). Given the nuances of scientific methodology brief are equally shocking. Though these cases are

Kyle Smith Page 35 of 47 543 U.S. 551, *619; 125 S. Ct. 1183, **1224; 161 L. Ed. 2d 1, ***58; 2005 U.S. LEXIS 2200, ****122 assuredly the exception rather than the rule, the studies innocent person in cold blood. the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from The Court concludes, however, ante, at 572-573, 161 treating exceptional cases in an exceptional way--by L. Ed. 2d, at 23-24, that juries cannot be trusted with the determining that some murders are not just the acts of delicate task of weighing a defendant's youth along with happy-go-lucky teenagers, but heinous crimes the other mitigating and aggravating factors of his crime. deserving of death. This startling conclusion undermines the very foundations of our capital sentencing system, which That "almost every State prohibits those under 18 years entrusts [****125] juries with "mak[ing] the difficult and of age from voting, serving on juries, or marrying without uniquely human judgments that defy codification and parental consent," ante, at 569, 161 L. Ed. 2d, at 22, is that 'buil[d] discretion, equity, and flexibility into a legal patently irrelevant--and is yet another resurrection of an system.'" McCleskey, supra, at 311, 95 L. Ed. 2d 262, argument that this Court gave a decent burial in 107 S. Ct. 1756 (quoting H. Kalven & H. Zeisel, The Stanford. (What kind of Equal Justice under Law is it American Jury 498 (1966)). The Court says, ante, at that--without so much as a "Sorry about that"--gives 573, 161 L. Ed. 2d, at 23-24, that juries will be unable to [***59] as the basis for sparing one person [****123] appreciate the significance of a defendant's youth when from execution arguments explicitly rejected in refusing faced with details of a brutal crime. This assertion is to spare another?) As we explained in Stanford, 492 based on no evidence; to the contrary, the Court itself U.S., at 374, 106 L. Ed. 2d 306, 109 S. Ct. 2969, it is acknowledges [**1225] that the execution of under-18 "absurd to think that one must be mature enough to offenders is "infrequent" even in the States "without drive carefully, to drink responsibly, or to vote [*621] a formal prohibition on executing juveniles," intelligently, in order to be mature enough to understand ante, at 564, 161 L. Ed. 2d, at 18, suggesting that juries that murdering another human being is profoundly take seriously their responsibility to weigh youth as a wrong, and to conform one's conduct to that most mitigating factor. minimal of all civilized standards." Serving on a jury or entering into marriage also involve decisions far more Nor does the Court suggest a stopping point for its sophisticated than the simple decision not to take reasoning. If juries cannot make appropriate another's life. determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors [*620] Moreover, the age statutes the Court lists "set deficient? We have already held that no jury may the appropriate ages for the operation of a system that consider whether a mentally [***60] deficient defendant makes its determinations in gross, and that does not can receive [****126] the death penalty, irrespective of conduct individualized maturity tests." Ibid. The criminal his crime. See Atkins, 536 U.S., at 321, 153 L. Ed. 2d justice system, by contrast, provides for individualized 335, 122 S. Ct. 2242. Why not take other mitigating consideration of each defendant. In capital cases, this factors, such as considerations of childhood abuse or Court requires the sentencer to make an individualized poverty, away from juries as well? Surely jurors determination, which includes weighing aggravating "overpower[ed]" by "the brutality or cold-blooded nature" factors and mitigating factors, such as youth. See of a crime, ante, at 573, 161 L. Ed. 2d, at 24, could not [****124] Eddings, 455 U.S., at 115-117, 71 L. Ed. 2d 1, adequately weigh these mitigating factors either. 102 S. Ct. 869. In other contexts where individualized consideration is provided, we have recognized that at The Court's contention that the goals of retribution and least some minors will be mature enough to make deterrence are not served by executing murderers difficult decisions that involve moral considerations. For under 18 is also transparently false. The argument that instance, we have struck down abortion statutes that do "[r]etribution is not proportional if the law's most severe not allow minors deemed mature by courts to bypass penalty is imposed on one whose culpability or parental notification provisions. See, e.g., Bellotti v. blameworthiness is diminished," ante, at 571, 161 L. Baird, 443 U.S. 622, 643-644, 61 L. Ed. 2d 797, 99 S. Ed. 2d, at 23, is simply an extension of the earlier, false Ct. 3035 (1979) (opinion of Powell, J.); Planned generalization that youth always defeats culpability. The Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74- Court claims that "juveniles will be less susceptible to 75, 49 L. Ed. 2d 788, 96 S. Ct. 2831 (1976). It is hard to deterrence," ante, at 572, 161 L. Ed. 2d, at 23, because see why this context should be any different. Whether "'[t]he likelihood that the teenage offender has made the to obtain an abortion is surely a much more complex kind of cost-benefit analysis that attaches any weight to decision for a young person than whether to kill an the possibility of execution is so remote as to be virtually

Kyle Smith Page 36 of 47 543 U.S. 551, *621; 125 S. Ct. 1183, **1225; 161 L. Ed. 2d 1, ***60; 2005 U.S. LEXIS 2200, ****126 nonexistent,'" ibid. [****127] (quoting Thompson, 487 empowers to enter into treaties, see Art. II, § 2 --have U.S., at 837, 101 L. Ed. 2d 702, 108 S. Ct. 2687). The declined to join and ratify treaties prohibiting [*623] Court unsurprisingly finds no support for this astounding execution of under-18 offenders can only suggest that proposition, save its own case law. The facts of this our country has either not reached a national consensus very case show the proposition to be false. Before on the question, or has reached a consensus contrary to committing the crime, Simmons encouraged his friends what the Court announces. That the reservation to the to join him by assuring them that they could "get away ICCPR was made in 1992 does not suggest otherwise, with it" because they were minors. State ex rel. since the reservation still remains in place today. It is Simmons v. Roper, 112 S.W.3d 397, 419 (Mo. 2003) also worth noting that, in addition to barring the (Price, J., dissenting). This fact may have influenced execution of under-18 offenders, the United Nations the jury's decision to impose capital punishment despite Convention on the Rights of the Child prohibits Simmons' age. [*622] Because the Court refuses to punishing them with life in prison without the possibility entertain the possibility that its own unsubstantiated of release. If we are truly going to get in line with the generalization about juveniles could be wrong, it ignores international community, then the Court's reassurance this evidence entirely. that the death penalty is really not needed, since "the punishment of life imprisonment without the possibility of III parole is itself a severe sanction," ante, at 572, 161 L. Ed. 2d, at 23, gives little comfort. Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of It is interesting that whereas the Court is not content to other countries and the so-called international accept what the States of our Federal Union say, but community take center stage. insists on inquiring into what they do (specifically, whether they in fact apply [****130] the juvenile death The Court begins by noting that "Article 37 of the United penalty that their laws allow), the Court is quite willing to Nations Convention on the Rights of the Child, [1577 U. believe that every foreign nation--of whatever tyrannical N. T. S. 3, 28 I. L. M. 1448, 1468-1470, entered into political makeup and with however subservient or force Sept. 2, 1990,] which every country in the world incompetent a court system--in fact adheres to a rule of has ratified [****128] save for the United States and no death penalty for offenders under 18. Nor does the Somalia, contains an express prohibition on capital Court inquire into how many of the countries that have punishment for crimes committed by juveniles under the death penalty, but have forsworn (on paper at least) 18." Ante, at 576, 161 L. Ed. 2d, at 26 (emphasis imposing that penalty on offenders under 18, have what added). The Court also discusses the International no State of this country can constitutionally have: a Covenant on Civil and Political Rights (ICCPR), mandatory death penalty for certain crimes, with no December 19, 1966, 999 U. N. T. S. 175, ante, at 567, possibility of mitigation by the sentencing authority, for 576, 161 L. Ed. 2d, at 20, 26, which the Senate ratified youth or any other reason. I suspect it is most of them. only subject to a reservation that reads: See, e.g., R. Simon & D. Blaskovich, A Comparative Analysis of Capital Punishment: Statutes, Policies, "The United States reserves the right, subject to its Frequencies, and Public Attitudes the World Over 25, Constitutional constraints, to impose capital 26, 29 (2002). To forbid the death penalty for juveniles punishment on any person (other than a pregnant under such a system may be a good idea, but it says woman) duly convicted under existing or future laws nothing about our system, in which the sentencing permitting the imposition of capital punishment, authority, typically a jury, always can, and almost [*624] including such punishment for crimes committed by always does, withhold the death penalty from an under- persons below eighteen years of age." Senate 18 offender except, after considering all the Committee on Foreign Relations, circumstances, in [****131] the rare cases where it is International [**1226] Covenant on Civil and Political warranted. The foreign authorities, in other words, do Rights, S. Exec. Rep. No. 102-23, p. 11 (1992). not even speak to the issue before us here. [***61] Unless the Court has added to its arsenal the More fundamentally, however, the basic premise of the power to join and ratify treaties on behalf of the United Court's argument--that American law should conform to States, I cannot see how this evidence favors, rather the laws of the rest of the world--ought to be rejected than refutes, its position. That the Senate and the out of hand. In fact the Court itself does not believe it. President--those actors our Constitution [****129] In many significant respects the laws of most other

Kyle Smith Page 37 of 47 543 U.S. 551, *624; 125 S. Ct. 1183, **1226; 161 L. Ed. 2d 1, ***61; 2005 U.S. LEXIS 2200, ****131 countries differ from our law--including not only such of religious expression within the context of public explicit provisions of our Constitution as the right to jury funding." S. Monsma & J. Soper, The Challenge of trial and grand jury indictment, but even many Pluralism: Church and State in Five Democracies 207 interpretations of the Constitution prescribed by this (1997); see also id., at 67, 103, 176. England permits Court itself. The Court-pronounced exclusionary rule, the teaching of religion in state schools. Id., at 142. for example, is distinctively American. When we Even in France, which is considered "America's only adopted that rule in Mapp v. Ohio, 367 U.S. 643, 655, 6 rival in strictness of church-state separation," L. Ed. 2d 1081, 81 S. Ct. 1684, 86 Ohio Law Abs. 513 "[t]he [****134] practice of contracting for educational (1961), it was "unique to American [***62] services provided by Catholic schools is very jurisprudence." Bivens v. Six Unknown Fed. Narcotics widespread." C. Glenn, The Ambiguous Embrace: Agents, 403 U.S. 388, 415, 29 L. Ed. 2d 619, 91 S. Ct. Government and Faith-Based Schools and Social 1999 (1971) (Burger, C. J., dissenting). Since then a Agencies 110 (2000). categorical exclusionary rule has been "universally rejected" by other countries, including those with rules And let us not forget the Court's abortion jurisprudence, prohibiting illegal searches [****132] and police which makes us one of only six countries that allow misconduct, [**1227] despite the fact that none of these abortion on demand until the point of viability. See countries "appears to have any alternative form of Larsen, Importing Constitutional Norms from a "Wider discipline for police that is effective in preventing search Civilization": Lawrence and the Rehnquist Court's Use violations." Bradley, Mapp Goes Abroad, 52 Case W. of Foreign and International Law in Domestic Res. L. Rev. 375, 399-400 (2001). England, for Constitutional Interpretation, 65 Ohio St. L. J. 1283, example, rarely excludes evidence found during an 1320 (2004); Center for Reproductive [*626] Rights, illegal search or seizure and has only recently begun The World's Abortion Laws (June 2004), excluding evidence from illegally obtained confessions. http://www.reproductiverights.org/pub_fac_abortion_law See C. Slobogin, Criminal Procedure: Regulation of s.html. [***63] Though the Government and amici in Police Investigation 550 (3d ed. 2002). Canada rarely cases following Roe v. Wade, 410 U.S. 113, 35 L. Ed. excludes evidence and will only do so if admission will 2d 147, 93 S. Ct. 705 (1973), urged the Court to follow "bring the administration of justice into disrepute." Id., at the international community's lead, these arguments fell 550-551 (internal quotation marks omitted). The on deaf ears. See McCrudden, A Part of the Main? European Court of Human Rights has held that The Physician-Assisted Suicide Cases and Comparative introduction of illegally seized evidence does not violate Law Methodology in the United States Supreme Court, the "fair trial" requirement in Article 6, § 1, of the in Law at the End of Life: The Supreme Court and European Convention on [*625] Human Rights. See Assisted Suicide 125, 129-130 (C. [****135] Schneider Slobogin, supra, at 551; Bradley, supra, at 377-378. ed. 2000).

The Court has been oblivious to the views of other The Court's special reliance on the laws of the United countries when deciding how to interpret our Kingdom is perhaps the most indefensible part of its Constitution's requirement that "Congress shall make no opinion. It is of course true that we share a common law respecting an establishment of religion. [****133] . . history with the United Kingdom, and that we often ." Amdt. 1. Most other countries--including those consult English sources when [**1228] asked to discern committed to religious neutrality--do not insist on the the meaning of a constitutional text written against the degree of separation between church and state that this backdrop of 18th-century English law and legal thought. Court requires. For example, whereas "we have If we applied that approach today, our task would be an recognized special Establishment Clause dangers easy one. As we explained in Harmelin v. Michigan, where the government makes direct money payments to 501 U.S. 957, 973-974, 115 L. Ed. 2d 836, 111 S. Ct. sectarian institutions," Rosenberger v. Rector and 2680 (1991), the "Cruell and Unusuall Punishments" Visitors of Univ. of Va., 515 U.S. 819, 842, 132 L. Ed. 2d provision of the English Declaration of Rights was 700, 115 S. Ct. 2510 (1995) (citing cases), countries originally meant to describe those punishments "'out of such as the Netherlands, Germany, and Australia allow [the Judges'] Power'"--that is, those punishments that direct government funding of religious schools on the were not authorized by common law or statute, but that ground that "the state can only be truly neutral between were nonetheless administered by the Crown or the secular and religious perspectives if it does not Crown's judges. Under that reasoning, the death dominate the provision of so key a service as education, penalty for under-18 offenders would easily survive this and makes it possible for people to exercise their right challenge. The Court has, however--I think wrongly--

Kyle Smith Page 38 of 47 543 U.S. 551, *626; 125 S. Ct. 1183, **1228; 161 L. Ed. 2d 1, ***63; 2005 U.S. LEXIS 2200, ****135 long rejected a purely originalist approach to our Eighth [****138] [**1229] [*628] The Court responds that "[i]t Amendment, and that is certainly not the approach the does not lessen our fidelity to the Constitution or our Court takes today. Instead, the [****136] Court pride in its origins to acknowledge that the express undertakes the majestic task of determining (and affirmation of certain fundamental rights by other nations thereby prescribing) our Nation's current standards of and peoples simply underscores the centrality of those decency. It is beyond comprehension why we should same rights within our own heritage of freedom." Ante, look, for that purpose, to a country that has developed, at 578, 161 L. Ed. 2d, at 27. To begin with, I do not in the centuries since the Revolutionary War--and with believe that approval by "other nations and peoples" increasing speed since the United Kingdom's recent should buttress our commitment to American principles submission to the jurisprudence of European courts any more than (what should logically follow) disapproval dominated by continental [*627] jurists--a legal, political, by "other nations and peoples" should weaken that and social culture quite different from our own. If we commitment. More importantly, however, the Court's took the Court's directive seriously, we would also statement flatly misdescribes what is going on here. consider relaxing our double jeopardy prohibition, since Foreign sources are cited today, not to underscore our the British Law Commission recently published a report "fidelity" to the Constitution, our "pride in its origins," and that would significantly extend the rights of the "our own [American] heritage." To the contrary, they are prosecution to appeal cases where an acquittal was the cited to set aside the centuries-old American practice--a result of a judge's ruling that was legally incorrect. See practice still engaged in by a large majority of the Law Commission, Double Jeopardy and Prosecution relevant States--of letting a jury of 12 citizens decide Appeals, LAW COM No. 267, Cm 5048, p 6, P 1.19 whether, in the particular case, youth should be the (Mar. 2001); J. Spencer, The English System in basis for withholding the death penalty. What these European Criminal Procedures 142, 204, and n 239 (M. foreign sources "affirm, [****139] " rather than repudiate, Delmas-Marty & J. Spencer eds. 2002). We would also is the Justices' own notion of how the world ought to be, curtail our right to jury trial in criminal cases since, and their diktat that it shall be so henceforth in America. despite the jury system's deep roots in our shared The Court's parting attempt to downplay the significance common law, [****137] England now permits all but the of its extensive discussion of foreign law is most serious offenders to be tried by magistrates unconvincing. "Acknowledgment" of foreign approval without a jury. See D. Feldman, England and Wales, in has no place in the legal opinion of this Court unless it is Criminal Procedure: A Worldwide Study 91, 114-115 (C. part of the basis for the Court's judgment--which is Bradley ed. 1999). surely what it parades as today.

The Court should either profess its willingness to IV reconsider all these matters in light of the views of foreigners, or else it should cease putting forth To add insult to injury, the Court affirms the Missouri foreigners' views as part of the reasoned basis of its Supreme Court without even admonishing that court for decisions. To invoke alien law when it agrees with one's its [*629] flagrant disregard of our precedent in own thinking, and ignore [***64] it otherwise, is not Stanford. Until today, we have always held that "it is this reasoned decisionmaking, but sophistry. 9 Court's prerogative alone to overrule one of its

"serve to confirm the reasonableness of a consonant and 9 Justice O'Connor asserts that the Eighth Amendment has a genuine American consensus." Ante, at 605, 161 L. Ed. 2d, at "special character," in that it "draws its meaning directly from 49-50. Surely not unless it can also demonstrate the the maturing values of civilized society." Ante, at 604-605, unreasonableness of such a consensus. Either America's 161 L. Ed. 2d, at 49. Nothing in the text reflects such a principles are its own, or they follow the world; one cannot distinctive character--and we have certainly applied the have it both ways. Finally, Justice O'Connor finds it "maturing values" rationale to give brave new meaning to unnecessary to consult foreign law in the present case other provisions of the Constitution, such as the Due Process because there is "no . . . domestic consensus" to be Clause and the Equal Protection Clause. See, e.g., Lawrence confirmed. Ibid. But since she believes that the Justices can v. Texas, 539 U.S. 558, 571-573, 156 L. Ed. 2d 508, 123 S. announce their own requirements of "moral proportionality" Ct. 2472 (2003); United States v. Virginia, 518 U.S. 515, 532- despite the absence of consensus, why would foreign law not 534, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996); Planned be relevant to that judgment? If foreign law is powerful Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847- enough to supplant the judgment of the American people, 850, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992). Justice surely it is powerful enough to change a personal assessment O'Connor asserts that an international consensus can at least of moral proportionality.

Kyle Smith Page 39 of 47 543 U.S. 551, *629; 125 S. Ct. 1183, **1229; 161 L. Ed. 2d 1, ***64; 2005 U.S. LEXIS 2200, ****139 precedents." State Oil Co. v. Khan, 522 U.S. 3, 20, 139 the designing [****142] of laws by citizens and their L. Ed. 2d 199, 118 S. Ct. 275 (1997). That has been representatives, and for action by public officials. The true even where "'changes in judicial doctrine' ha[ve] result will be to crown arbitrariness with chaos. significantly undermined" our prior holding, United States v. Hatter, 532 U.S. 557, 567, 149 L. Ed. 2d 820, References 121 S. Ct. 1782 (2001) (quoting [****140] Hatter v. United [***65] States, 64 F.3d 647, 650 (CA Fed. 1995)), and even where our prior holding "appears to 21A Am Jur 2d, Criminal Law §§ 958, 959 rest on reasons rejected in some other line of decisions," Rodriguez de Quijas v. Shearson/American USCS, Constitution, Amendments 8, 14 Express, Inc., 490 U.S. 477, 484, 104 L. Ed. 2d 526, 109 S. Ct. 1917 (1989). Today, however, the Court L Ed Digest, Criminal Law § 93.3; Evidence § 980 silently approves a state-court decision that blatantly rejected controlling precedent. L Ed Index, Capital Offenses and Punishment

One must admit that the Missouri Supreme Court's Annotation References action, and this Court's indulgent reaction, are, in a way, understandable. In a system based upon constitutional Validity of death penalty, under Federal Constitution, as and statutory text democratically adopted, the concept affected by consideration of aggravating or mitigating of "law" ordinarily signifies that particular words have a circumstances. 111 L. Ed. 2d 947. fixed meaning. Such law does not change, and this Court's pronouncement of it therefore remains Supreme Court's views on constitutionality of death authoritative until (confessing our prior error) we penalty and procedures under which it is imposed or overrule. The Court has purported to make of the carried out. 90 L. Ed. 2d 1001. Eighth Amendment, however, a mirror of the passing Federal constitutional guarantee against cruel and and changing sentiment of American society regarding unusual punishment--Supreme Court cases. 33 L. Ed. penology. The lower courts can look into that mirror as 2d 932. well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since Comment note.--What provisions of the Federal they are not looking at the [****141] same text, but at a Constitution's Bill of Rights are applicable to the states. different [**1230] scene, why should our earlier decision 18 L. Ed. 2d 1388, 23 L. Ed. 2d 985. control their judgment?

However sound philosophically, this is no way to run a Propriety of imposing capital punishment on mentally legal system. We must disregard the new reality that, to retarded individuals. 20 A.L.R.5th 177 [****143] . the extent our Eighth Amendment decisions constitute Comment note.--Mental or emotional condition as something more than a show of hands on the current diminished responsibility for crime. 22 A.L.R.3d 1228. Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions [*630] just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court's decisions without any force--especially since the "evolution" of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, "updating" the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for

Kyle Smith Caution As of: December 12, 2016 8:47 PM EST

United States v. Hubbell

Supreme Court of the United States February 22, 2000, Argued ; June 5, 2000, Decided No. 99-166

Reporter 530 U.S. 27 *; 120 S. Ct. 2037 **; 147 L. Ed. 2d 24 ***; 2000 U.S. LEXIS 3768 ****; 68 U.S.L.W. 4449; 2000-1 U.S. Tax Cas. (CCH) P50,499; 2000 Cal. Daily Op. Service 4354; 2000 Daily Journal DAR 5845; 2000 Colo. J. C.A.R. 3116; 13 Fla. L. Weekly Fed. S 382 for a hearing to establish petitioner's knowledge of UNITED STATES v. WEBSTER L. HUBBELL respondent's financial affairs. The appellate court concluded that respondent could not be compelled to Prior History: [****1] ON WRIT OF CERTIORARI TO produce the documents requested by petitioner without THE UNITED STATES COURT OF APPEALS FOR first receiving a grant of immunity under 18 U.S.C.S. § THE DISTRICT OF COLUMBIA CIRCUIT. 6003 because such immunity was co-extensive with the constitutional privilege against self-incrimination. The Disposition: 167 F.3d 552, affirmed. constitutional privilege applied to the testimonial aspect of a response to a subpoena seeking discovery of the Core Terms sources of potentially incriminating evidence and documents, subpoena, self-incrimination, records, respondent's act of production had a testimonial aspect testimonial, immunity, Rights, incriminating, papers, that entitled him to assert his self-incrimination privilege. compel testimony, producing, district court, telephone, Since petitioner did not show any prior knowledge of the billing, sources, communications, indictment, provides, documents respondent produced, those documents incriminating evidence, Declaration, contents, grand could not have provided the basis for respondent's jury, reflecting, witnesses, cases, constitutional indictment. Thus, the indictment was dismissed. privilege, subpoena duces tecum, grant immunity, authenticity, Compulsory Outcome Judgment affirmed because constitutional self- Case Summary incrimination privilege applied to testimonial aspects of a response to a subpoena and petitioner had not shown any prior knowledge of documents respondent produced Procedural Posture under subpoena. Petitioner United States challenged judgment of United States Court of Appeals for District of Columbia Circuit, LexisNexis® Headnotes which remanded for hearing on extent of petitioner's independent knowledge of existence and authenticity of documents respondent provided in response to Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege subpoena that provided petitioner with information that led to respondent's prosecution. HN1 See U.S. Const. amend. V. Overview Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege Petitioner United States prosecuted respondent for various crimes after he produced documents in HN2 See 18 U.S.C.S. § 6002. response to a court order issued pursuant to 18 U.S.C.S. § 6003(a). The order directed respondent to Constitutional Law > ... > Fundamental Rights > Procedural respond to a subpoena and granted him immunity to the Due Process > Self-Incrimination Privilege extent allowed by law. The lower court had remanded

Kyle Smith Page 2 of 20 530 U.S. 27, *27; 120 S. Ct. 2037, **2037; 147 L. Ed. 2d 24, ***24; 2000 U.S. LEXIS 3768, ****1

HN3 18 U.S.C.S. § 6003(a) authorizes a district court to HN6 The act of producing documents in response to a issue an order requiring an "individual to give testimony subpoena may have a compelled testimonial aspect. or provide other information which he refuses to give or The act of production itself may implicitly communicate provide on the basis of his privilege against self- statements of fact. By producing documents in incrimination. compliance with a subpoena, the witness would admit that the papers existed, were in his possession or Constitutional Law > ... > Fundamental Rights > Procedural control, and were authentic. Moreover, when the Due Process > Self-Incrimination Privilege custodian of documents responds to a subpoena, he Evidence > ... > Scientific Evidence > Bodily may be compelled to take the witness stand and answer Evidence > Blood & Bodily Fluids questions designed to determine whether he has produced everything demanded by the subpoena. The Business & Corporate Compliance > ... > Federal Income answers to those questions, as well as the act of Tax Computation > Tax Accounting > Accounting Records production itself, may certainly communicate information HN4 The word witness in the text of U.S. Const. amend. about the existence, custody, and authenticity of the V limits the relevant category of compelled incriminating documents. Whether the constitutional privilege protects communications to those that are testimonial in the answers to such questions, or protects the act of character. There is a significant difference between the production itself, is a question that is distinct from the use of compulsion to extort communications from a question whether the unprotected contents of the defendant and compelling a person to engage in documents themselves are incriminating. conduct that may be incriminating. Thus, even though Constitutional Law > ... > Fundamental Rights > Procedural the act may provide incriminating evidence, a criminal Due Process > Self-Incrimination Privilege suspect may be compelled to put on a shirt, to provide a blood sample or handwriting exemplar, or to make a Evidence > Privileges > Self-Incrimination recording of his voice. The act of exhibiting such Privilege > General Overview physical characteristics is not the same as a sworn communication by a witness that relates either express HN7 The U.S. Const. amend. V privilege against self- or implied assertions of fact or belief. Similarly, the fact incrimination applies to acts that imply assertions of fact. that incriminating evidence may be the byproduct of In order to be testimonial, an accused's communication obedience to a regulatory requirement, such as filing an must itself, explicitly or implicitly, relate a factual income tax return, maintaining required records, or assertion or disclose information. Only then is a person reporting an accident, does not clothe such required compelled to be a witness against himself. conduct with the testimonial privilege. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege HN8 It has long been settled that U.S. Const. amend. HN5 The settled proposition is that a person may be V's protection encompasses compelled statements that required to produce specific documents even though lead to the discovery of incriminating evidence even they contain incriminating assertions of fact or belief though the statements themselves are not incriminating because the creation of those documents was not and are not introduced into evidence. compelled within the meaning of the privilege. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege Civil Procedure > Pleading & Practice > Pleadings > Answers HN9 The self-incrimination privilege afforded not only Civil Procedure > ... > Discovery > Methods of extends to answers that would in themselves support a Discovery > General Overview conviction under a federal criminal statute but likewise Civil Procedure > Discovery & embraces those which would furnish a link in the chain Disclosure > Discovery > Subpoenas of evidence needed to prosecute the claimant for a federal crime. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege Constitutional Law > ... > Fundamental Rights > Procedural Evidence > ... > Documentary Due Process > Self-Incrimination Privilege Evidence > Writings > General Overview

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HN10 Compelled testimony that communicates Summary information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory. In 1994, upon the request of the United States Attorney General, an Independent Counsel was appointed to Constitutional Law > ... > Fundamental Rights > Procedural investigate possible criminal violations relating to, Due Process > Self-Incrimination Privilege among other matters, the President's relationships with Criminal Law & Procedure > ... > Self-Incrimination various business entities. In the course of this Privilege > Immunity > Independently Discovered Evidence investigation, a former United States Associate Attorney General was charged with mail fraud and tax evasion Governments > Federal Government > Claims By & Against arising out of his billing practices as a member of an Arkansas law firm from 1989 to 1992. In a guilty-plea HN11 18 U.S.C.S. § 6002 imposes an affirmative duty agreement, the former official promised to provide the on the prosecution, not merely to show that its evidence Independent Counsel with information about matters is not tainted by the prior testimony, but to prove that the relating to the investigation. In 1996, the Independent evidence it proposes to use is derived from a legitimate Counsel obtained a subpoena duces tecum that called source wholly independent of the compelled testimony. on the former official to produce documents before a Constitutional Law > ... > Fundamental Rights > Procedural federal grand jury sitting in Little Rock, Arkansas. The Due Process > Self-Incrimination Privilege former official appeared before the grand jury and invoked the Federal Constitution's Fifth Amendment HN12 In the context of a self-incrimination claim, the privilege against self-incrimination. However, the testimonial aspect of a response to a subpoena duces independent counsel produced a federal court order tecum does nothing more than establish the existence, which (1) directed the former official to respond to the authenticity, and custody of items that are produced. subpoena; and (2) granted him immunity, under 18 USCS 6002, against the use and derivative use of Constitutional Law > ... > Fundamental Rights > Procedural compelled testimony. The former official then delivered Due Process > Self-Incrimination Privilege the specified documents. Subsequently, a federal grand Criminal Law & Procedure > ... > Self-Incrimination jury in the District of Columbia returned an indictment Privilege > Invocation by Witnesses > Entitlement which charged the former official with various tax-related crimes and mail and wire fraud. However, the United Criminal Law & Procedure > ... > Self-Incrimination States District Court for the District of Columbia, in Privilege > Invocation by Witnesses > Guarantee Against dismissing the indictment, relied in part on the ground Self-Incrimination that the independent counsel's use of the subpoenaed Evidence > Privileges > Self-Incrimination documents violated 6002, as the District Court Privilege > General Overview concluded that all of the evidence that would have been offered against the former official at trial derived either HN13 The constitutional privilege against self- directly or indirectly from the testimonial aspects of the incrimination protects the target of a grand jury former official's immunized act of producing those investigation from being compelled to answer questions documents (11 F Supp 2d 25). The United States Court designed to elicit information about the existence of of Appeals for the District of Columbia Circuit, in sources of potentially incriminating evidence. That vacating the District Court's judgment and in remanding constitutional privilege has the same application to the for further proceedings, expressed the view that (1) the testimonial aspect of a response to a subpoena seeking District Court had incorrectly relied on the fact that the discovery of those sources. Independent Counsel had not had prior knowledge of the contents of the subpoenaed documents; (2) the Lawyers' Edition Display District Court ought to have addressed the question of the extent of the Independent Counsel's independent knowledge of (a) the documents' existence and Decision authenticity, and (b) the former official's possession or control of the documents; and (3) if the Independent Accused's federal indictment held required to be Counsel could not demonstrate with reasonable dismissed, where evidence used to obtain indictment particularity a prior awareness that the documents was not derived from sources independent of existed and were in the former official's possession, documents produced under grant of immunity. then the indictment would be tainted (334 US App DC

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315, 167 F3d 552). The Independent Counsel--having documents ought to have been limited to verifying that acknowledged, on remand, that he could not satisfy the the Independent Counsel, in securing the former reasonable-particularity standard--entered into a official's indictment, had only used information that conditional plea agreement providing for (1) dismissal of would have been used if the documents had appeared the indictment, unless the United States Supreme in the Independent Counsel's office, unsolicited and Court's disposition of the case were to make it without explanation. reasonably likely that the former official's immunity would not pose a significant bar to his prosecution; and Headnotes (2) the entry of a guilty plea and a sentence if the Supreme Court were to reverse the Court of Appeals' WITNESSES §74 > -- self-incrimination -- grand jury judgment. > Headnote: LEdHN[1A] [1A]LEdHN[1B] [1B] On certiorari, the Supreme Court affirmed. In an opinion by Stevens, J., joined by O'Connor, Scalia, Kennedy, The Federal Constitution's Fifth Amendment privilege Souter, Thomas, Ginsburg, and Breyer, JJ., it was held against self-incrimination protects the target of a grand that the former official's indictment had to be dismissed, jury investigation from being compelled to answer where the Federal Government could not prove that the questions designed to elicit information about the evidence that it used to obtain the indictment--and existence of sources of potentially incriminating proposed to use at trial--was derived from legitimate evidence; this privilege has the same application to the sources that were entirely independent of the testimonial aspect of a response to a subpoena seeking testimonial aspect of the former official's immunized discovery of those sources. conduct in producing the subpoenaed documents, as, among other matters, (1) 6002's guarantee of use-and- INDICTMENTS INFORMATIONS §98 > WITNESSES derivative-use immunity was as broad as the Fifth §84 > -- dismissal -- self-incrimination -- statutory grant of Amendment's privilege against self-incrimination; (2) the immunity > Headnote: former official's production of the catalog of existing LEdHN[2A] [2A]LEdHN[2B] [2B]LEdHN[2C] documents fitting within any of the 11 broadly worded [2C]LEdHN[2D] [2D]LEdHN[2E] [2E] subpoena categories could have provided the Independent Counsel with (a) a lead to incriminating With respect to the federal indictment of an accused evidence, or (b) a link in the chain of evidence needed after he produced some documents in response to a to prosecute; (3) the testimonial aspect of the former subpoena duces tecum pursuant to a grant of immunity official's act of production was the first step in the chain under 18 USCS 6002, the indictment must be of evidence leading to prosecution; and (4) the dismissed, where the Federal Government cannot prove Independent Counsel had shown no prior knowledge of that the evidence that it used to obtain the indictment-- either the existence or the whereabouts of the and proposes to use at the trial--is derived from documents ultimately produced. legitimate sources entirely independent from the testimonial aspect of the accused's immunized conduct Thomas, J., joined by Scalia, J., concurring, expressed in producing subpoenaed documents, as (1) 6002's the view that although the Supreme Court properly guarantee of use-and-derivative-use immunity is as applied the act-of-production doctrine, (1) that doctrine broad as the Federal Constitution's Fifth Amendment could be inconsistent with the original meaning of the privilege against self-incrimination; (2) in the case at Fifth Amendment's self-incrimination clause, (2) a hand, the accused's production of a catalog of existing substantial body of evidence suggested that the Fifth documents fitting within any of the 11 broadly worded Amendment privilege protected against the compelled subpoena categories could provide the prosecutor with production not just of incriminating testimony, but of any (a) a lead to the incriminating evidence, or (b) a link in incriminating evidence, and (3) the scope and meaning the chain of evidence needed to prosecute; (3) the of the self-incrimination clause ought to be reconsidered documents in question, which were sought by one grand in a future case. jury to see if the accused had violated a plea agreement, led to the indictment in question, which was Rehnquist, Ch. J., dissenting, would have reversed the returned by another grand jury for offenses apparently Court of Appeals' judgment in part for the reasons unrelated to that agreement; (4) the testimonial aspect expressed by a dissenting Court of Appeals judge, to of the accused's act of production was the first step in a the effect that the inquiry about the subpoenaed

Kyle Smith Page 5 of 20 530 U.S. 27, *27; 120 S. Ct. 2037, **2037; 147 L. Ed. 2d 24, ***24; 2000 U.S. LEXIS 3768, ****1 chain of evidence leading to the prosecution in question; > Headnote: (5) thus, the United States Supreme Court cannot LEdHN[5] [5] accept the prosecutor's submission that the accused's immunity pursuant to 6002 does not preclude derivative Notwithstanding the self-incrimination clause of the use of the documents on the theory that the prosecutor's Federal Constitution's Fifth Amendment, a criminal possession of the documents is the fruit of only the suspect may properly be compelled to put on a shirt, simple physical act of production; and (6) the prosecutor provide a blood sample or handwriting exemplar, or has shown no prior knowledge of either the existence or make a recording of the suspect's voice--even though the whereabouts of the documents ultimately produced. such acts may provide incriminating evidence--for the (Rehnquist, Ch. J., dissented in part from this holding.) act of exhibiting such physical characteristics is not the same as a sworn communication by a witness that APPEAL §1662.5 > -- mootness > Headnote: relates either express or implied assertions of fact or LEdHN[3] [3] belief.

On certiorari to review a Federal Court of Appeals' WITNESSES §72 > -- self-incrimination -- records judgment with respect to the federal indictment of an > Headnote: accused after he produced some documents in LEdHN[6] [6] response to a subpoena duces tecum pursuant to a grant of immunity under 18 USCS 6002, the case is not The fact that incriminating evidence may possibly be the moot--even though a federal prosecutor (1) byproduct of obedience to a regulatory requirement-- acknowledges that the Court of Appeals' "reasonable such as filing an income tax return, maintaining required particularity" standard concerning the documents cannot records, or reporting an accident--does not clothe such be satisfied, and (2) enters into a conditional plea required conduct with the testimonial privilege of the agreement with the accused--where the plea agreement self-incrimination clause of the Federal Constitution's also provides for the entry of a guilty plea and a Fifth Amendment. sentence that will not include incarceration if the Supreme Court should reverse the Court of Appeals and WITNESSES §76 > -- self-incrimination -- documents should issue an opinion that is sufficiently favorable to > Headnote: the government to satisfy that condition. LEdHN[7] [7]

WITNESSES §72 > -- privilege against self-incrimination Notwithstanding the self-incrimination clause of the > Headnote: Federal Constitution's Fifth Amendment, a person may LEdHN[4A] [4A]LEdHN[4B] [4B]LEdHN[4C] [4C] properly be required to produce specific documents-- even though such documents contain incriminating With respect to a person's protection, under the Federal assertions of fact or belief--because the creation of Constitution's Fifth Amendment, against being those documents is not "compelled" within the meaning "compelled in any criminal case to be a witness against of the privilege. himself," the word "witness" limits the relevant category of compelled incriminating communications to those that WITNESSES §91 > -- self-incrimination -- documents are testimonial in character, as there is a significant > Headnote: difference between (1) the use of compulsion to extort LEdHN[8] [8] communications from a defendant, and (2) compelling a person to engage in conduct that may be incriminating; Notwithstanding the self-incrimination clause of the it is consistent with the history of and the policies Federal Constitution's Fifth Amendment, an accused underlying the Fifth Amendment's self-incrimination cannot avoid compliance with a subpoena duces tecum clause to hold that the privilege may be asserted only to merely because the documents demanded by the resist compelled explicit or implicit disclosures of subpoena contain incriminating evidence, whether incriminating information, for historically, the privilege written by others or voluntarily prepared by the accused. was intended to prevent the use of legal compulsion to extract from an accused a sworn communication of facts WITNESSES §76 > -- self-incrimination -- documents which would incriminate the accused. > Headnote: LEdHN[9] [9] WITNESSES §93.5 > -- self-incrimination -- physical tests

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With respect to a custodian of documents who is Once a defendant in a federal prosecution demonstrates compelled, when responding to a subpoena, to take the that the defendant has testified, under a state grant of witness stand and answer questions designed to immunity, to matters related to the federal prosecution, determine whether the custodian has produced the federal authorities have the burden of showing that everything demanded by the subpoena, the question their evidence is not tainted by establishing that the whether the self-incrimination clause of the Federal federal authorities had an independent and legitimate Constitution's Fifth Amendment protects the answers to source for the disputed evidence. such questions--or the act of production itself--is distinct from the question whether the unprotected contents of WITNESSES §84 > -- statutory immunity > Headnote: the documents themselves are incriminating. LEdHN[13] [13]

WITNESSES §72 > -- privilege against self-incrimination For purposes of a federal immunity statute (18 USCS > Headnote: 6002) which protects a witness against the derivative LEdHN[10] [10] use of compelled testimony, the testimonial aspect of a witness' response to a subpoena duces tecum does Notwithstanding the phrase "in any criminal case" in the nothing more than establish the existence, authenticity, text of the self-incrimination clause of the Federal and custody of items that are produced. Constitution's Fifth Amendment, the clause's protection encompasses compelled statements that lead to the APPEAL §1296 > -- presumptions -- evidence > Headnote: discovery of incriminating evidence, even though the LEdHN[14] [14] statements themselves are not incriminating and are not introduced into evidence; the privilege afforded by the On certiorari to review a Federal Court of Appeals' clause not only extends to answers that would in decision with respect to the federal indictment of an themselves support a conviction under a federal criminal accused after he produced some documents in statute, but also embraces those answers which would response to a subpoena duces tecum pursuant to a furnish a link in the chain of evidence needed to grant of immunity under 18 USCS 6002, the United prosecute the claimant for a federal crime; compelled State Supreme Court will assume that the government testimony which communicates information that may (1) is correct in submitting that the government will not possibly lead to incriminating evidence is privileged have to advert to the accused's act of production in even if the information itself is not inculpatory. order to prove the existence, authenticity, or custody of any documents that the government might offer in EVIDENCE §419 > -- burden of proof -- use of testimony evidence at a criminal trial; and (2) thus has no intention > Headnote: of making improper use of accused's compelled LEdHN[11] [11] testimony.

A federal immunity statute (18 USCS 6002), which WITNESSES §91 > -- immunity -- documents > Headnote: protects a witness against the derivative use of LEdHN[15] [15] compelled testimony, imposes an affirmative duty on the prosecution not only to show that the prosecution's With respect to a witness who produces documents in evidence is not tainted by the prior testimony, but also to response to a subpoena duces tecum pursuant to a prove that the evidence that the prosecution proposes to grant of immunity under 18 USCS 6002, the introduction use is derived from a legitimate source wholly of the response to the subpoena into evidence at the independent of the compelled testimony; requiring the witness' subsequent criminal trial is a prohibited use of prosecution to shoulder this burden insures that the the immunized act of production. grant of immunity has left the witness and the prosecution in substantially the same position as if the Syllabus witness had claimed the privilege in the absence of a grant of immunity. As part of a plea agreement, respondent promised to provide the Independent Counsel investigating matters EVIDENCE §419 > -- burden of proof -- use of testimony relating to the Whitewater Development Corporation > Headnote: with information relevant to his investigation. LEdHN[12A] [12A]LEdHN[12B] [12B] Subsequently, the Independent Counsel served respondent with a subpoena calling for the production of

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11 categories of documents before a grand jury in Little testimonial aspect. That act, as well as a Rock, Arkansas. Respondent appeared before that jury, custodian's [****4] compelled testimony about whether invoked his Fifth Amendment privilege against self- he has produced everything demanded, may certainly incrimination, and refused to state whether he had the communicate information about the documents' documents. The prosecutor then produced an order existence, custody, and authenticity. It is also well obtained pursuant to 18 U.S.C. § 6003 [****2] (a) settled that compelled testimony communicating directing respondent to respond to the subpoena and information that may lead to incriminating evidence is granting him immunity to the extent allowed by law. privileged even if the information itself is not inculpatory. Respondent produced 13,120 pages of documents and Pp. 6-10. testified that those were all of the responsive documents in his control. The Independent Counsel used the (b) Section 6002 is constitutional because the scope of documents' contents in an investigation that led to this the "use and derivative-use" immunity it provides is indictment of respondent on tax and fraud charges. The coextensive with the scope of the constitutional privilege District Court dismissed the indictment on the ground against self-incrimination. Kastigar v. United States, 406 that the Independent Counsel's use of the subpoenaed U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653. When a documents violated 18 U.S.C. § 6002 -- which provides person is prosecuted for matters related to immunized for use and derivative-use immunity -- because all of the testimony, the prosecution has an affirmative duty to evidence he would offer against respondent at trial prove that the evidence it proposes to use is derived derived either directly or indirectly from the testimonial from a legitimate source wholly independent of that aspects of respondent's immunized act of producing the testimony. 406 U.S. at 460. This ensures that the grant documents. In vacating and remanding, the Court of of immunity leaves the witness and the Government in Appeals directed the District Court to determine the substantially the same position as if the witness had extent and detail of the Government's knowledge of claimed his privilege in the grant's absence. The respondent's financial affairs on the day the subpoena compelled testimony relevant here is not to be found in issued. If the Government could not demonstrate with the contents of the documents produced, but is the reasonable particularity a prior awareness that the testimony inherent in the [****5] act of producing those documents sought existed and were in respondent's documents. Pp. 10-13. possession, the indictment was tainted. Acknowledging [****3] that he could not satisfy the (c) The fact that the Government does not intend to use reasonable particularity standard, the Independent the act of production in respondent's criminal trial leaves Counsel entered into a conditional plea agreement open the separate question whether it has already made providing for dismissal of the indictment unless this "derivative use" of the testimonial aspect of that act in Court's disposition of the case makes it reasonably likely obtaining the indictment and preparing for trial. It clearly that respondent's immunity would not pose a significant has. It is apparent from the subpoena's text that the bar to his prosecution. Because the agreement also prosecutor needed respondent's assistance both to provides for the entry of a guilty plea and a sentence identify potential sources of information and to produce should this Court reverse, the case is not moot. those sources. It is undeniable that providing a catalog of existing documents fitting within any of the 11 broadly Held: The indictment against respondent must be worded subpoena categories could provide a prosecutor dismissed. Pp. 6-18. with a lead to incriminating evidence or a link in the chain of evidence needed to prosecute. Indeed, that is (a) The Fifth Amendment protects a person from being what happened here: The documents sought by one "compelled in any criminal case to be a witness against grand jury to see if respondent had violated a plea himself." The word "witness" limits the relevant category agreement led to the return of an indictment by another of compelled incriminating communications to those that grand jury for offenses apparently unrelated to that are "testimonial." In addition, a person such as agreement. The testimonial aspect of respondent's act respondent may be required to produce specific of production was the first step in a chain of evidence documents containing incriminating assertions of fact or leading to this prosecution. Thus, the Court cannot belief because the creation of those documents was not accept the Government's submission that "compelled" within the meaning of the privilege. See respondent's [****6] immunity did not preclude its Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, derivative use of the produced documents because its 96 S. Ct. 1569. However, the act of producing possession of the documents was the fruit only of the subpoenaed documents may have a compelled simple physical act of production. In addition, the

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Government misreads Fisher v. United States, 425 U.S. charges against him. 2 at 411, and ignores United States v. Doe, 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237, in arguing that the [****8] I communicative aspect of respondent's act of production This proceeding arises out of the second prosecution of is insufficiently testimonial to support a privilege claim respondent, Webster Hubbell, commenced by the because the existence and possession of ordinary Independent Counsel appointed in August 1994 to business records is a "foregone conclusion." Unlike the investigate possible violations of federal law relating to circumstances in Fisher, the Government has shown no the Whitewater Development Corporation. The first prior knowledge of either the existence or the prosecution was terminated pursuant to a plea bargain. whereabouts of the documents ultimately produced In December 1994, respondent pleaded guilty to here. In Doe, the Court found that the act of producing charges of mail fraud and tax evasion arising out of his several broad categories of general business records billing practices as a member of an Arkansas law firm would involve testimonial self-incrimination. Pp. 13-18. from 1989 to 1992, and was sentenced to 21 months in 167 F.3d 552, affirmed. prison. In the plea agreement, respondent promised to provide the Independent Counsel with "full, complete, Counsel: Ronald J. Mann argued the cause for accurate, and truthful information" about matters relating petitioner. to the Whitewater investigation.

Michael R. Dreeben argued the cause for the United The second prosecution resulted from the Independent States Department of Justice, as amicus curiae, by Counsel's attempt to determine whether respondent had special leave of court. violated [*31] that promise. In October 1996, while respondent was incarcerated, the Independent Counsel John W. Nields, Jr. argued the cause for respondent. served him with a subpoena duces tecum calling for the production [***33] of 11 categories of documents before Judges: STEVENS, J., delivered the opinion of the a grand jury sitting in Little Rock, Arkansas. See Court, in which O'CONNOR, SCALIA, KENNEDY, Appendix, infra. On November 19, he appeared before SOUTER, THOMAS, GINSBURG, and BREYER, JJ., the grand jury and invoked his Fifth Amendment joined. THOMAS, J., filed a concurring opinion, in which privilege [****9] against self-incrimination. In response to SCALIA, J., joined. REHNQUIST, C. J., filed a questioning by the prosecutor, respondent initially dissenting statement. [****7] refused "to state whether there are documents within my possession, custody, or control responsive to the Opinion by: STEVENS Subpoena." App. 62. Thereafter, the prosecutor produced an order, which had previously been obtained Opinion

2 [*29] [**2040] [***32] JUSTICE STEVENS delivered HN2 Section 6002 provides: "Whenever a witness refuses, the opinion of the Court. on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to -- [1A] [1A] [2A] [2A] The two questions presented concern the scope of a witness' protection against "(1) a court or grand jury of the United States, compelled self-incrimination: (1) whether the Fifth "(2) an agency of the United States, or Amendment privilege 1 protects a [*30] witness from being compelled to disclose the existence of "(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House, incriminating documents that the Government is unable to describe with reasonable particularity; and (2) if the "and the person presiding over the proceeding communicates witness produces such documents pursuant to a grant to the witness an order issued under this title, the witness may of immunity, whether 18 U.S.C. § 6002 prevents the not refuse to comply with the order on the basis of his privilege Government from using them to prepare criminal against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal 1 HN1 "No person . . . shall be compelled in any criminal case case, except a prosecution for perjury, giving a false to be a witness against himself." U.S. Const., Amdt. 5. statement, or otherwise failing to comply with the order."

Kyle Smith Page 9 of 20 530 U.S. 27, *31; 120 S. Ct. 2037, **2040; 147 L. Ed. 2d 24, ***33; 2000 U.S. LEXIS 3768, ****9 from the District Court pursuant to 18 U.S.C. § 6003(a), at 37. 3 directing him to respond to the subpoena and granting him immunity "to the extent allowed by law." 4 The Court of Appeals vacated the judgment and Respondent then produced 13,120 pages of documents remanded for further proceedings. 167 F.3d 552 and records and responded to a series of questions that (CADC 1999). The majority concluded that the District established that those were all of the documents in his Court had incorrectly relied on the fact that the custody or control that were responsive to the Independent Counsel did not have prior knowledge of commands in the subpoena, with the exception of a few the contents of the subpoenaed documents. [****12] documents he claimed were shielded by the attorney- The question the District Court should have addressed client [**2041] and attorney work-product privileges. was the extent of the Government's independent [****10] knowledge of the documents' existence and authenticity, and of respondent's possession or control of them. It The contents of the documents produced by respondent explained: [***34] provided the Independent Counsel with the information that led to this second prosecution. On April 30, 1998, a "On remand, the district court should hold a hearing in grand jury in the District of Columbia returned a 10- which it seeks to establish the extent and detail of the count indictment charging respondent with various tax- Government's knowledge of Hubbell's financial affairs related crimes and mail and wire fraud. 5 The District (or of the paperwork documenting it) on the day the Court dismissed the [*32] indictment relying, in part, on subpoena issued. It is only then that the court will be in the ground that the Independent Counsel's use of the a position to assess the testimonial value of Hubbell's subpoenaed documents violated § 6002 because all of response to the subpoena. Should the Independent the evidence he would offer against respondent at trial Counsel prove capable of demonstrating with derived either directly or indirectly from the testimonial reasonable [*33] particularity a prior awareness that the aspects of respondent's immunized act of producing exhaustive litany of documents sought in the subpoena those documents. 6 11 F. Supp. 2d 25, 33-37 (DDC existed and were in Hubbell's possession, then the wide 1998). Noting that the Independent Counsel had distance evidently traveled from the subpoena to the admitted that he was not investigating tax-related issues substantive allegations contained in the indictment when he issued the subpoena, and that he had "'learned would be based upon legitimate intermediate steps. To about the unreported income and other crimes from the extent that the information conveyed through studying the records' contents,'" the District Court Hubbell's compelled act of production provides the characterized the subpoena as "the necessary linkage, however, the indictment deriving quintessential [****11] fishing expedition." 11 F. Supp. 2d therefrom is tainted." 167 F.3d at 581.

In the opinion of the dissenting [****13] judge, the majority failed to give full effect to the distinction 3 HN3 Section 6003(a) authorizes a district court to issue an between the contents of the documents and the limited order requiring an "individual to give testimony or provide other testimonial significance of the act of producing them. In information which he refuses to give or provide on the basis of his view, as long as the prosecutor could make use of his privilege against self-incrimination." The effect of such an information contained in the documents or derived order is covered by § 6002, quoted in n. 2, supra. therefrom without any reference to the fact that respondent had produced them in response to a 4 In re Grand Jury Proceedings, No. GJ-96-3 (ED Ark., Nov. subpoena, there would be no improper use of the 14, 1996), App. 60-61. testimonial aspect of the immunized act of production. In 5 Several of the counts in the indictment also named three other words, the constitutional privilege and the statute other defendants. Those charges are not relevant because (a) conferring use immunity would only shield the witness they have been dismissed with prejudice, and (b) the Fifth from the use of any information resulting from his Amendment privilege asserted by respondent would not, in subpoena response "beyond what the prosecutor would any event, affect the charges against those other defendants. receive [**2042] if the documents appeared in the grand 6 As an independent basis for dismissal, the District Court also jury room or in his office unsolicited and unmarked, like concluded that the Independent Counsel had exceeded his manna from heaven." 7 166 F.3d at 602. jurisdiction under the Ethics in Government Act of 1978, as amended by the Independent Counsel Reauthorization Act of 1994, 28 U.S.C. §§ 591-599. That holding was reversed by the 7 Over the dissent of four judges, the Court of Appeals denied Court of Appeals and is not at issue here. a suggestion for rehearing en banc. App. to Pet. for Cert.

Kyle Smith Page 10 of 20 530 U.S. 27, *33; 120 S. Ct. 2037, **2042; 147 L. Ed. 2d 24, ***34; 2000 U.S. LEXIS 3768, ****13

[3] [3] On remand, the Independent Counsel [****14] observed, there is a significant difference between the acknowledged that he could not satisfy the "reasonable use of compulsion to extort communications from a particularity" standard prescribed by the Court of defendant and compelling a person to engage in Appeals and entered into a conditional plea agreement conduct [*35] that may be incriminating. 9 Thus, even with respondent. In essence, the agreement provides for though the act may provide incriminating evidence, a the dismissal of the charges unless this Court's criminal suspect may be compelled to put on a shirt, 10 disposition of the case makes it reasonably likely that to provide a blood sample 11 or handwriting exemplar, respondent's "act of production immunity" would not 12 or to make a recording [**2043] of his voice. 13 The [*34] pose a significant bar to his prosecution. App. act of exhibiting such physical characteristics is not the 106-107. The case is not moot, however, because the same as a sworn communication by a witness that agreement also provides for the entry of a guilty plea relates either express or implied assertions of fact or and a sentence that will not include incarceration if we belief. Pennsylvania v. Muniz, 496 U.S. 582, 594-598, should reverse and issue an opinion that is sufficiently 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990). Similarly, the favorable to the Government to satisfy that condition. fact that incriminating evidence may be the byproduct of Ibid. Despite that agreement, we granted the obedience to a regulatory requirement, such as filing an Independent Counsel's petition for a writ of certiorari in income tax return, 14 maintaining required records, 15 or order to determine the precise scope of a grant of reporting an accident, 16 does not clothe such [****16] immunity with respect to the production of documents in response to a subpoena. 528 U.S. (1999). We now affirm. States, 487 U.S. 201, 212, 101 L. Ed. 2d 184, 108 S. Ct. 2341 II (1988).

[4A] [4A] It is useful to preface our analysis of the 9 "A question arose as to whether a blouse belonged to the constitutional issue with a restatement of certain prisoner. A witness testified that the prisoner put it on and it propositions that are not in dispute. The term "privilege fitted him. It is objected that he did this under the same duress against self-incrimination" is not an entirely accurate that made his statements inadmissible, and that it should be description of [****15] a person's constitutional excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be witness against protection [***35] against being "compelled in any himself is a prohibition of the use of physical or moral criminal case to be a witness against himself." compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. [4B] [4B] [5] [5] [6] [6] HN4 The word "witness" in the The objection in principle would forbid a jury to look at a constitutional text limits the relevant category of prisoner and compare his features with a photograph in proof." compelled incriminating communications to those that Holt v. United States, 218 U.S. 245, 252-253, 54 L. Ed. 1021, 8 are "testimonial" in character. As Justice Holmes 31 S. Ct. 2 (1910).

10 Ibid. 142a-143a. 11 Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 8 [4C] [4C] S. Ct. 1826 (1966).

"It is consistent with the history of and the policies underlying 12 Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. the Self-Incrimination Clause to hold that the privilege may Ct. 1951 (1967). be asserted only to resist compelled explicit or implicit disclosures of incriminating information. Historically, the 13 United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 privilege was intended to prevent the use of legal compulsion S. Ct. 1926 (1967). to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the 14 United States v. Sullivan, 274 U.S. 259, 71 L. Ed. 1037, 47 ecclesiastical courts and the Star Chamber -- the inquisitorial S. Ct. 607 (1927). method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged 15 Shapiro v. United States, 335 U.S. 1, 92 L. Ed. 1787, 68 S. offenses, without evidence from another source. See Ct. 1375 (1948). Andresen v. Maryland, 427 U.S. 463, 470-471, 49 L. Ed. 2d 627, 96 S. Ct. 2737 (1976); 8 Wigmore § 2250; E. Griswold, 16 California v. Byers, 402 U.S. 424, 29 L. Ed. 2d 9, 91 S. Ct. The Fifth Amendment Today 2-3 (1955)." Doe v. United 1535 (1971).

Kyle Smith Page 11 of 20 530 U.S. 27, *35; 120 S. Ct. 2037, **2043; 147 L. Ed. 2d 24, ***35; 2000 U.S. LEXIS 3768, ****16 required conduct with the testimonial privilege. 17 that the papers existed, were in his possession or [****17] control, and were authentic." 19 [*37] Moreover, as was true in this [**2044] case, when the custodian of [7] [7] [8] [8] More relevant to this case is HN5 the documents responds to a subpoena, he may be settled proposition that a person may be required to compelled to take the witness stand and answer produce specific documents even though they contain questions designed to determine whether he has incriminating assertions of fact or belief because the produced everything demanded by the subpoena. 20 creation of those documents was not "compelled" [*36] The answers to those questions, as well as the act of [***36] within the meaning of the privilege. Our production itself, may certainly communicate information decision [****18] in Fisher v. United States, 425 U.S. about the existence, custody, and [***37] authenticity of 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), dealt with the documents. Whether the constitutional privilege summonses issued by the Internal Revenue Service protects the answers to such questions, or protects the (IRS) seeking working papers used in the preparation of act of production itself, is a question that is distinct from tax returns. Because the papers had been voluntarily the question whether the unprotected contents of the prepared prior to the issuance of the summonses, they documents themselves are incriminating. [****20] could not be "said to contain compelled testimonial evidence, either of the taxpayers or of anyone else." [10] [10] Finally, the phrase "in any criminal case" in the Accordingly, the taxpayer could not "avoid compliance text of the Fifth Amendment might have been read to with the subpoena merely by asserting that the item of limit its coverage to compelled testimony that is used evidence which he is required to produce contains against the defendant in the trial itself. HN8 It has, incriminating writing, whether his own or that of however, long been settled that its protection someone else." 425 U.S. at 409-410; see also United encompasses compelled statements that lead to the States v. Doe, 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. discovery of incriminating evidence even though the Ct. 1237 (1984). 18 It is clear, therefore, that respondent statements themselves are not incriminating and are not Hubbell could not avoid compliance with the subpoena introduced into evidence. Thus, a half-century ago we served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself. 19 "The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a [****19] HN6 [9] [9] On the other hand, we have also statement, might nonetheless have some protected testimonial made it clear that the act of producing documents in aspects. The Court concluded that the act of production could response to a subpoena may have a compelled constitute protected testimonial communication because it testimonial aspect. We have held that "the act of might entail implicit statements of fact: by producing production" itself may implicitly communicate documents in compliance with a subpoena, the witness would "statements of fact." By "producing documents in admit that the papers existed, were in his possession or compliance with a subpoena, the witness would admit control, and were authentic. United States v. Doe, 465 U.S. at 613, and n. 11; Fisher, 425 U.S. at 409-410; id. at 428, 432 (concurring opinions). See Braswell v. United States, [487 U.S.,] at 104; [id.,] at 122 (dissenting opinion). Thus, the Court 17 "The Court has on several occasions recognized that the made clear that HN7 the Fifth Amendment privilege against Fifth Amendment privilege may not be invoked to resist self-incrimination applies to acts that imply assertions of fact. compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its " . . . An examination of the Court's application of these criminal laws." Baltimore City Dept. of Social Servs. v. principles in other cases indicates the Court's recognition that, Bouknight, 493 U.S. 549, 556, 107 L. Ed. 2d 992, 110 S. Ct. in order to be testimonial, an accused's communication must 900 (1990). itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 18 "Respondent does not contend that he prepared the 'witness' against himself." Doe v. United States, 487 U.S. at documents involuntarily or that the subpoena would force him 209-210 (footnote omitted). to restate, repeat, or affirm the truth of their contents. The fact that the records are in respondent's possession is irrelevant to 20 See App. 62-70. Thus, for example, after respondent had the determination of whether the creation of the records was been duly sworn by the grand jury foreman, the prosecutor compelled. We therefore hold that the contents of those called his attention to paragraph A of the Subpoena Rider records are not privileged." United States v. Doe, 465 U.S. at (reproduced in the Appendix, infra, at 19) and asked whether 611-612 (footnote omitted). he had produced "all those documents." App. 65.

Kyle Smith Page 12 of 20 530 U.S. 27, *37; 120 S. Ct. 2037, **2044; 147 L. Ed. 2d 24, ***37; 2000 U.S. LEXIS 3768, ****20 held [*38] that a trial judge had erroneously rejected a from such testimony or other information).'" 406 U.S. at defendant's claim of privilege on the ground that his 453. We particularly [***38] emphasized the critical answer to the pending question would not itself importance of protection against a future prosecution constitute evidence of the charged offense. As we "'based on knowledge and sources of information explained: obtained from the compelled testimony.'" 406 U.S. at 454 (quoting Ullmann v. United States, 350 U.S. 422, HN9 "The privilege afforded not only extends to answers 437, 100 L. Ed. 511, 76 S. Ct. 497 (1956)). 21 that would in themselves support a conviction under a federal criminal statute but likewise [****21] embraces [****23] [11] [11] [12A] [12A] We also rejected the those which would furnish a link in the chain of evidence petitioners' argument that derivative-use immunity under needed to prosecute the claimant for a federal crime." § 6002 would not obviate the risk that the prosecutor or Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. other law enforcement officials may use compelled 1118, 71 S. Ct. 814 (1951). testimony to obtain leads, names of witnesses, or other information not otherwise available to support a HN10 Compelled testimony that communicates prosecution. That argument was predicated on the information that may "lead to incriminating evidence" is incorrect assumption that the derivative-use prohibition privileged even if the information itself is not inculpatory. would prove impossible to enforce. But given that the Doe v. United States, 487 U.S. 201, 208, n. 6, 101 L. statute contains a "comprehensive safeguard" in the Ed. 2d 184, 108 S. Ct. 2341 (1988). It is the Fifth form of a "sweeping proscription of any use, direct or Amendment's protection against the prosecutor's use of indirect, of the [*40] compelled testimony and any incriminating information derived directly or indirectly information derived therefrom," we concluded that a from the compelled testimony of the respondent that is person who is prosecuted for matters related to of primary relevance in this case. testimony he gave under a grant of immunity does not have the burden of proving that his testimony was III improperly used. Instead, we held that HN11 the statute imposes an affirmative duty on the prosecution, not Acting pursuant to 18 U.S.C. § 6002, the District Court merely to show that its evidence is not tainted by the entered an order compelling respondent to produce "any prior testimony, but "to prove that the evidence it and all documents" described in the grand jury proposes to use is derived from a legitimate source subpoena and granting him "immunity to the extent wholly independent of the compelled testimony." 406 allowed by law." App. 60-61. In Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972), we upheld the constitutionality of § 6002 because the scope of the "use and derivative-use" immunity that it provides is coextensive with the scope 21 "Our holding is consistent with the conceptual basis of of the constitutional privilege against self-incrimination. Counselman. The Counselman statute, as construed by the Court, was plainly deficient in its failure to prohibit the use The [****22] protection against the derivative use of against the immunized witness of evidence derived from his compelled testimony distinguishes § 6002 from the 1868 compelled testimony. The Court repeatedly emphasized this statute that had been held invalid in Counselman v. deficiency, noting that the statute: Hitchcock, 142 U.S. 547, 35 L. Ed. 1110, 12 S. Ct. 195 (1892), because it merely provided "use" immunity, as 'could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him well as from the more recent federal statutes that or his property, in a criminal proceeding . . . ' 142 U.S. at 564; broadly provide "transactional" immunity. In Kastigar the petitioners argued that, under our reasoning in . . . . . Counselman, nothing less [*39] than full transactional "and that it: immunity from [**2045] prosecution for any offense to which compelled testimony relates could suffice to 'affords no protection against that use of compelled testimony supplant the privilege. In rejecting that argument, we which consists in gaining therefrom a knowledge of the details stressed the importance of § 6002's "explicit of a crime, and of sources of information which may supply proscription" of the use in any criminal case of other means of convicting the witness or party.' 142 U.S. at "'testimony or other information compelled under the 586." order (or any information directly or indirectly derived Kastigar v. United States, 406 U.S. at 453-454.

Kyle Smith Page 13 of 20 530 U.S. 27, *40; 120 S. Ct. 2037, **2045; 147 L. Ed. 2d 24, ***38; 2000 U.S. LEXIS 3768, ****23

U.S. at 460. 22 Requiring the prosecution to shoulder making improper "use" of respondent's compelled this burden [****24] ensures that the grant of immunity testimony. has "left the witness and the Federal Government in substantially the same position as if the witness had [15] [15] [2B] [2B] The question, however, is not claimed his privilege in the absence of a grant of whether the response to the subpoena may be immunity." 406 U.S. at 458-459 (internal quotation introduced into evidence at his [****26] criminal trial. marks and footnote omitted). [***HR12B] That would surely be a prohibited "use" of the immunized act of production. See In re Sealed Case, [****25] The "compelled testimony" that is relevant in 253 U.S. App. D.C. 8, 791 F.2d 179, 182 (CADC 1986) this case is not to be [***39] found in the contents of the (Scalia, J.). But the fact that the Government intends no documents produced in response to the subpoena. It is, such use of the act of production leaves open the rather, the [**2046] testimony inherent in the act of separate question whether it has already made producing those documents. The disagreement between "derivative use" of the testimonial aspect of that act in the parties focuses entirely on the significance of that obtaining the indictment against respondent and in testimonial aspect. preparing its case for trial. It clearly has.

IV [2C] [2C] It is apparent from the text of the subpoena itself that the prosecutor needed respondent's [13] [13] [14] [14] The Government correctly assistance both to identify potential sources of emphasizes that HN12 the testimonial aspect of a information and to produce those sources. See response to a subpoena duces tecum does nothing Appendix, infra. Given the breadth of the description of [*41] more than establish the existence, authenticity, the 11 categories of documents called for by the and custody of items that are produced. We assume subpoena, the collection and production of the materials that the Government is also entirely correct in its demanded was tantamount to answering a series of submission that it would not have to advert to interrogatories asking a witness to disclose the respondent's act of production in order to prove the existence and location of particular documents fitting existence, authenticity, or custody of any documents certain broad descriptions. The assembly of literally that it might offer in evidence at a criminal trial; indeed, hundreds of pages of material in response to a request the Government disclaims any need to introduce any of for "any and all documents reflecting, referring, or the documents produced by respondent into evidence in relating to any direct or indirect sources of money or order to prove the charges against him. It follows, other [****27] things of value received by or provided to" according to the Government, that it has no intention of an individual or members of his family during a 3-year period, Appendix, infra, at 19, is the functional equivalent of the preparation of an answer to either a 22 [12B] [12B] detailed written [*42] interrogatory or a series of oral questions at a discovery deposition. Entirely apart from "A person accorded this immunity under 18 U.S.C. § 6002, the contents of the 13,120 pages of materials that and subsequently prosecuted, is not dependent for the respondent produced in this case, it is undeniable that preservation of his rights upon the integrity and good faith of providing a catalog of existing documents fitting within the prosecuting authorities. As stated in Murphy [v. Waterfront any of the 11 broadly worded subpoena categories Comm'n of N. Y. Harbor, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. could provide a prosecutor with a "lead to incriminating Ct. 1594 (1964)]: evidence," or "a link in the chain of evidence needed to 'Once a defendant demonstrates that he has testified, under a prosecute." state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of Indeed, the record makes it clear that that is what showing that their evidence is not tainted by establishing that happened in this case. The documents were produced they had an independent, legitimate source for the disputed before a grand jury sitting in the Eastern District of evidence.' [Id.,] at 79 n. 18. Arkansas in aid of the Independent Counsel's attempt to determine whether respondent had violated a "This burden of proof, which we reaffirm as appropriate, is not commitment in his first plea agreement. The use of limited to a negation of taint; rather, it imposes on the those sources of information eventually led [***40] to the prosecution the affirmative duty to prove that the evidence it return of an indictment by a grand jury sitting in the proposes to use is derived from a legitimate source wholly District of Columbia for offenses that apparently are independent of the compelled testimony." 406 U.S. at 460.

Kyle Smith Page 14 of 20 530 U.S. 27, *42; 120 S. Ct. 2037, **2046; 147 L. Ed. 2d 24, ***40; 2000 U.S. LEXIS 3768, ****27 unrelated to that plea agreement. What the District produced simply fails to account for these realities. Court characterized as [****28] a "fishing expedition" did produce a fish, but not the one that the Independent [****30] [1B] [1B] [2D] [2D] In sum, we have no doubt Counsel expected to hook. It is abundantly clear that the that HN13 the constitutional privilege against self- testimonial aspect of respondent's act of producing incrimination protects the target of a grand jury subpoenaed documents was the first step in a chain of investigation from being compelled to answer questions evidence that led to this prosecution. The documents designed to elicit information about the existence of did not magically appear in the prosecutor's office like sources of potentially incriminating evidence. That "manna from heaven." They arrived there only after constitutional privilege has the same application to the respondent asserted his constitutional privilege, testimonial aspect of a response to a subpoena seeking received a grant of immunity, and -- under the discovery of those sources. Before the District Court, compulsion of the District [**2047] Court's order -- took the Government arguably conceded that respondent's the mental and physical steps necessary to provide the act of production in this case had a testimonial aspect prosecutor with an accurate inventory of the many that entitled him to respond to the subpoena by sources of potentially incriminating evidence sought by asserting his privilege against self-incrimination. See the subpoena. It was only through respondent's truthful 167 [***41] F.3d at 580 (noting District [*44] Court's reply to the subpoena 23 that the Government received finding that "Hubbell's compelled act of production [*43] the incriminating documents of which it made required him to make communications as to the "substantial use . . . in the investigation that led to the existence, possession, and authenticity of the indictment." Brief for United States 3. subpoenaed documents"). On appeal and again before this Court, however, the Government has argued that [****29] For these reasons, we cannot accept the the communicative aspect of respondent's act of Government's submission that respondent's immunity producing ordinary business records is insufficiently did not preclude its derivative use of the produced "testimonial" to support a claim of privilege because the documents because its "possession of the documents existence and possession of such records by any [was] the fruit only of a simple physical act -- the act of businessman is a "foregone conclusion" [****31] under producing the documents." Id. at 29. It was our decision in Fisher v. United States, 425 U.S. at 411. unquestionably necessary for respondent to make This argument both misreads Fisher and ignores our extensive use of "the contents of his own mind" in subsequent decision in United States v. Doe, 465 U.S. identifying the hundreds of documents responsive to the 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984). requests in the subpoena. See Curcio v. United States, 354 U.S. 118, 128, 1 L. Ed. 2d 1225, 77 S. Ct. 1145 As noted in Part II, supra, Fisher involved summonses (1957); Doe v. United States, 487 U.S. at 210. The seeking production of working papers prepared by the assembly of those documents was like telling an taxpayers' accountants that the IRS knew were in the inquisitor the combination to a wall safe, not like being possession of the taxpayers' attorneys. 425 U.S. at forced to surrender the key to a strongbox. 487 U.S. at 394. In rejecting the taxpayers' claim that these 210, n. 9. The Government's anemic view of documents were protected by the Fifth Amendment respondent's act of production as a mere physical act privilege, we stated: that is principally non-testimonial in character and can be entirely divorced from its "implicit" testimonial aspect "It is doubtful that implicitly admitting the existence and so as to constitute a "legitimate, wholly independent possession of the papers rises to the level of testimony source" (as required by Kastigar) for the documents within the protection of the Fifth [**2048] Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the 23 See Stuntz, Self-incrimination and Excuse, 88 Colum. L. Government is in no way relying on the 'truthtelling' of Rev. 1227, 1228-1229, 1256-1259, 1277-1279 (1988) the taxpayer to prove the existence of or his access to (discussing the conceptual link between truth-telling and the the documents. . . . The existence and location of the privilege in the document production context); Alito, papers are a foregone conclusion and the taxpayer Documents and the Privilege Against Self-Incrimination, 48 U. adds little or nothing to the sum total of the Pitt. L. Rev. 27, 47 (1986); 8 J. Wigmore, Evidence § 2264, p. Government's information [****32] by conceding that he 379 (J. McNaughton rev. 1961) (describing a subpoena duces in fact has the papers." 425 U.S. at 411 (emphases tecum as "process relying on [the witness'] moral responsibility for truthtelling"). added).

Kyle Smith Page 15 of 20 530 U.S. 27, *44; 120 S. Ct. 2037, **2048; 147 L. Ed. 2d 24, ***41; 2000 U.S. LEXIS 3768, ****32

Whatever the scope of this "foregone conclusion" respondent must be dismissed. The judgment of the rationale, the facts of this case plainly fall outside of it. Court of Appeals is affirmed. While in Fisher the Government already knew that the documents were in the attorneys' possession and could It is so ordered. independently [*45] confirm their existence and APPENDIX TO OPINION OF THE COURT authenticity through the accountants who created them, here the Government has not shown that it had any On October 31, 1996, upon application by the prior knowledge of either the existence or the Independent Counsel, a subpoena was issued whereabouts of the 13,120 pages of documents commanding respondent to appear and testify before ultimately produced by respondent. The Government the grand jury of the United States District Court for the cannot cure this deficiency through the overbroad Eastern District of Arkansas on November 19, 1996, argument that a businessman such as respondent will and to bring with him various documents described in a always possess general business and tax records that "Subpoena Rider" as follows: fall within the broad categories described in this subpoena. The Doe subpoenas also sought several "A. Any and all documents reflecting, referring, or broad categories of general business records, yet we relating to any direct or indirect sources of money or upheld the District Court's finding that the act of other things of value receive by or provided to producing those records would involve testimonial self- Webster [**2049] Hubbell, his wife, or children from incrimination. 465 U.S. at 612-614, and n. 13. January 1, 1993 to the present, including but not limited to the identity of employers or clients of legal or any Given our conclusion that respondent's act of production other type of work. had a testimonial aspect, at least with respect to the existence [****33] and location of the documents sought "B. Any and all documents reflecting, referring, or by the Government's subpoena, respondent could not relating to any direct or indirect sources of money of be compelled to produce those documents without first other [****35] things of value received by or provided to receiving a grant of immunity under § 6003. As we Webster Hubbell, his wife, or children from January 1, construed § 6002 in Kastigar, such immunity is co- 1993 to the present, including but not limited to billing extensive with the constitutional privilege. Kastigar memoranda, draft statements, bills, final statements, requires that respondent's motion to [***42] dismiss the and/or bills for work performed or time billed from indictment on immunity grounds be granted unless the January 1, 1993 to the present. Government proves that the evidence it used in obtaining the indictment and proposed to use at trial "C. Copies of all bank records of Webster Hubbell, his was derived from legitimate sources "wholly wife, or children for all accounts from January 1, 1993 to independent" of the testimonial aspect of respondent's the present, including but not limited to all statements, immunized conduct in assembling and producing the registers and ledgers, cancelled checks, deposit items, documents described in the subpoena. The and wire transfers. Government, however, does not claim that it could make "D. Any and all documents reflecting, referring, or such a showing. Rather, it contends that its prosecution relating to time worked or billed by Webster Hubbell of respondent must be considered proper unless from [*47] January 1, 1993 to the present, including but someone -- presumably respondent -- shows that "there not limited to original time sheets, books, notes, papers, is some substantial relation between the compelled and/or computer records. testimonial communications implicit in the act of production (as opposed to the act of production standing "E. Any and all documents reflecting, referring, or alone) and some aspect of the information used in the relating to expenses incurred by and/or disbursements investigation or the evidence presented at trial." Brief for of money by Webster Hubbell during the course of any United States 9. [****34] We could not accept [*46] this work performed or to be performed by Mr. Hubbell from submission without repudiating the basis for our January 1, 1993 to the present. conclusion in Kastigar that the statutory guarantee of use and derivative-use immunity is as broad as the "F. Any and all documents reflecting, referring, or constitutional privilege itself. This we are not prepared to relating to Webster Hubbell's schedule of activities, do. including but not limited to any and all [***43] calendars, day-timers, [****36] time books, appointment books, [2E] [2E] Accordingly, the indictment against diaries, records of reverse telephone toll calls, credit

Kyle Smith Page 16 of 20 530 U.S. 27, *47; 120 S. Ct. 2037, **2049; 147 L. Ed. 2d 24, ***43; 2000 U.S. LEXIS 3768, ****36 card calls, telephone message slips, logs, other "K. Any and all documents related to work performed or telephone records, minutes, databases, electronic mail to be performed for or on behalf of Lippo Ltd. (formerly messages, travel records, itineraries, tickets for Public Finance (H.K.) Ltd.), the Lippo Group, the Lippo transportation of any kind, payments, bills, expense Bank, Mochtar Riady, James Riady, Stephen Riady, backup documentation, schedules, and/or any other John Luen Wai Lee, John Huang, Mark W. Grobmyer, document or database that would disclose Webster C. Joseph Giroir, Jr., or any affiliate, subsidiary, or Hubbell's activities from January 1, 1993 to the present. corporation owned or controlled by or related to the aforementioned entities or individuals, including but not "G. Any and all documents reflecting, referring, or limited to correspondence, retainer agreements, relating to any retainer agreements or contracts for contracts, time sheets, appointment calendars, activity employment of Webster Hubbell, his wife, or his children calendars, diaries, billing statements, billing from January 1, 1993 to the present. memoranda, telephone records, telephone message slips, telephone credit card statements, itineraries, "H. Any and all tax returns and tax return information, tickets for [***44] transportation, payment records, including but not limited to all W-2s, form 1099s, expense receipts, ledgers, check registers, notes, schedules, draft returns, work papers, and backup memoranda, electronic mail, bank [*49] deposit items, documents filed, created or held by or on behalf of cashier's checks, traveler's checks, wire transfer records Webster Hubbell, his wife, his children, and/or any and/or other records of financial transactions." App. 47- business in which he, his wife, or his children holds or 49. has held an interest, for the tax years 1993 to the present. CHIEF JUSTICE REHNQUIST dissents and would "I. Any and all documents reflecting, referring, or relating reverse the judgment [****39] of the Court of Appeals in to work performed or to be performed or on behalf of the part, for the reasons given by Judge Williams in his dissenting opinion in that court, 167 F.3d 552, 597 City of Los Angeles, California, the Los Angeles [****37] (CADC 1999). Department of Airports or any other Los Angeles municipal Governmental entity, Mary Leslie, and/or Alan Concur by: THOMAS S. Arkatov, including but not limited to correspondence, retainer agreements, [*48] contracts, time sheets, appointment calendars, activity calendars, diaries, billing Concur statements, billing memoranda, telephone records, telephone message slips, telephone credit card JUSTICE THOMAS, with whom JUSTICE SCALIA joins, statements, itineraries, tickets for transportation, concurring. payment records, expense receipts, ledgers, check Our decision today involves the application of the act-of- registers, notes, memoranda, electronic mail, bank production doctrine, which provides that persons deposit items, cashier's checks, traveler's checks, wire compelled to turn over incriminating papers or other transfer records and/or other records of financial physical evidence pursuant to a subpoena duces tecum transactions. "J. Any and all documents reflecting, or a summons may invoke the Fifth Amendment referring, or relating to work performed or to be privilege against self-incrimination as a bar to production performed by Webster Hubbell, his wife, or his children only where the act of producing the evidence would on the recommendation, counsel or other influence of contain "testimonial" features. See ante, at 6-10. I join Mary Leslie and/or Alan S. Arkatov, including but not the opinion of the Court because it properly applies this limited to correspondence, retainer agreements, doctrine, but I write separately to note that this doctrine contracts, time sheets, appointment calendars, activity may be inconsistent with the original meaning of the calendars, diaries, billing statements, billing Fifth Amendment's Self-Incrimination Clause. A memoranda, telephone records, telephone message substantial body of evidence suggests that the Fifth slips, telephone credit card statements, itineraries, Amendment privilege protects against the compelled tickets for transportation, payment records, expense production not just of incriminating testimony, but of any receipts, [****38] ledgers, check registers, notes, incriminating evidence. In a future case, I would be memoranda, electronic [**2050] mail, bank deposit willing to reconsider the scope and meaning of the Self- items, cashier's checks, traveler's checks, wire transfer Incrimination Clause. records and/or other records of financial transactions. I

Kyle Smith Page 17 of 20 530 U.S. 27, *49; 120 S. Ct. 2037, **2050; 147 L. Ed. 2d 24, ***44; 2000 U.S. LEXIS 3768, ****39

The Fifth Amendment [****40] provides that "no person . Such a meaning of "witness" [****43] is consistent with, . . shall be compelled in any criminal case to be a and may help explain, the history and framing of the witness against himself." The key word at issue in this Fifth Amendment. The 18th century common-law case is "witness." The Court's opinion, relying on prior privilege against self-incrimination protected against the cases, essentially defines "witness" as a person who compelled production of incriminating physical evidence provides testimony, and thus restricts the Fifth such as papers and documents. See Morgan, The Amendment's ban to only those communications [*50] Privilege against Self-Incrimination, 34 Minn. L. Rev. 1, "that are 'testimonial' in character." Ante, at 6. None of 34 (1949); Nagareda, supra, at 1618-1623. Several 18th this Court's cases, however, has undertaken an analysis century cases explicitly recognized such a self- of the meaning of the term at the time of the founding. A incrimination privilege. See Roe v. Harvey, 4 Burr 2484, review of that period reveals substantial support for the 2489, 98 Eng. Rep. 302, 305 (K. B. 1769); King v. view that the term "witness" meant a person who gives Purnell, 1 Black 37, 42, 96 Eng. Rep. 20, 23 (K. B. or furnishes evidence, a broader meaning than that 1748); King v. Cornelius, 2 Strange 1210, 1211, 93 Eng. which our case law currently ascribes to the term. If this Rep. 1133, 1134 (K. B. 1744); Queen v. Mead, 2 Ld. is so, a person who responds to a subpoena duces Raym. 927, 92 Eng. Rep. 119 (K. B. 1703); King v. tecum would be just as much a "witness" as a person Worsenham, 1 Ld. Raym. 705, 91 Eng. Rep. 1370 (K. B. who responds to a subpoena ad testificandum. 1 1701). And this Court has noted that, for generations before the framing, "one cardinal rule of the court of [****41] Dictionaries published around the time of the chancery was never to decree a discovery which might founding included definitions of the [**2051] term tend to convict the party of a crime." Boyd v. United "witness" as a person who gives or furnishes evidence. States, 116 U.S. 616, 631, 29 L. Ed. 746, 6 S. Ct. 524 Legal dictionaries of that period defined "witness" as (1886). [****44] See also Counselman v. Hitchcock, 142 someone who "gives evidence in a cause." 2 G. Jacob, U.S. 547, 563-564, 35 L. Ed. 1110, 12 S. Ct. 195 (1892) A New Law-Dictionary (8th ed. 1762); 2 T. Cunningham, ("It is an ancient principle of the law of evidence, that a New and Complete Law-Dictionary (2d ed. [***45] witness shall not be compelled, in any proceeding, to 1771); T. Potts, A Compendious Law Dictionary 612 make [*52] disclosures or to give testimony which will (1803); 6 G. Jacob, The Law-Dictionary 450 (T. Tomlins tend to criminate him or subject him to fines, penalties 1st American ed. 1811). And a general dictionary or forfeitures"). published earlier in the century similarly defined "witness" as "a giver of evidence." J. Kersey, A New Against this common-law backdrop, the privilege against English Dictionary (1702). The term "witness" apparently self-incrimination was enshrined in the Virginia continued to have this meaning at least until the first Declaration of Rights in 1776. See Moglen, The edition of Noah Webster's dictionary, which defined it as Privilege in British North America: The Colonial Period "that which furnishes evidence or proof." An American to the Fifth Amendment, in The Privilege against Self- Dictionary of the English Language (1828). See also J. Incrimination: Its Origins and Development 133-134 (R. Story, Commentaries on the Constitution of the United Helmholz, et al., eds. 1997). That document provided States § 931 (1833) (using phrases "to give evidence" and "to furnish evidence" in explanation of the Self- Incrimination Clause). See generally Nagareda, 2 Further, it appears that the phrases "gives evidence" and Compulsion [*51] "to be a witness" and the "furnishes evidence" were not simply descriptions of the act of Resurrection of Boyd, 74 N. Y.U. L. Rev. 1575, 1608- providing testimony. For example, in King v. Purnell, 1 Black 1609 (1999). [****42] 2 37, 96 Eng. Rep. 20 (K. B. 1748), the phrase "furnish evidence" is repeatedly used to refer to the compelled production of books, records, and archives in response to a government request. Id. at 40, 41, 42, 96 Eng. Rep. at 21, 22, 23. See also, e.g., King v. Cornelius, 2 Strange 1210, 1211, 93 1 Even if the term "witness" in the Fifth Amendment referred Eng. Rep. 1133, 1134 (K. B. 1744) (compelling discovery of to someone who provides testimony, as this Court's recent books "is in effect obliging a defendant . . . to furnish evidence cases suggest without historical analysis, it may well be that at against himself"); 1 T. Cunningham, New and Complete Law- the time of the founding a person who turned over documents Dictionary (2d ed. 1771) (evidence "signifies generally all would be described as providing testimony. See Amey v. proof, be it testimony of men, records or writings"); 1 G. Jacob, Long, 9 East. 472, 484, 103 Eng. Rep. 653, 658 (K.B. 1808) The Law-Dictionary (T. Tomlins ed. 1797) (defining "evidence" (referring to documents requested by subpoenas duces tecum as "proof by testimony of witnesses, on oath; or by writings or as "written . . . testimony"). records").

Kyle Smith Page 18 of 20 530 U.S. 27, *52; 120 S. Ct. 2037, **2051; 147 L. Ed. 2d 24, ***45; 2000 U.S. LEXIS 3768, ****44 that no one may "be compelled to give evidence against phrasing that none of the proposals had suggested -- himself." Virginia Declaration of Rights § 8 (1776), in 1 apparently attracted [****47] no attention, much less The Bill of Rights: A Documentary [***46] History 235 opposition, in Congress, the state legislatures that (B. Schwartz ed. 1971). Following Virginia's lead, seven ratified the Bill of Rights, or anywhere else. See 2 W. of the other original States included specific provisions LaFave, J. Israel, & N King, Criminal Procedure 290-291 in their Constitutions granting a right against (2d ed. 1999). In fact, the only Member of the First compulsion [**2052] "to give evidence" or "to furnish Congress to address self-incrimination during the evidence." See Pennsylvania Declaration of Rights, Art. debates on the Bill of Rights treated the phrases as IX (1776) ("give"), id. at 265; Delaware Declaration of synonymous, restating Madison's formulation as a ban Rights § 15 (1776) ("give"), [****45] id. at 278; Maryland on forcing one "to give evidence against himself." 1 Declaration of Rights Art. XX (1776) ("give"), id. at 282; Annals of Cong. 753-754 (J. Gales ed. 1834) (statement North Carolina Declaration of Rights, Art. VII (1776) of Rep. Laurance). 3 ("give"), id. at 287; Vermont Declaration of Rights, Ch. I, Art. X (1777) ("give"), id. at 323; Massachusetts [*54] [****48] [**2053] In addition, a broad definition of Declaration of Rights, Pt. 1, Art. XII (1780) ("furnish"), id. [***47] the term "witness" -- one who gives evidence -- at 342; New Hampshire Bill of Rights Art. XV (1783) is consistent with the same term (albeit in plural form) in ("furnish"), id. at 377. And during ratification of the the Sixth Amendment's Compulsory Process Clause. 4 Federal Constitution, the four States that proposed bills That Clause provides that "in all criminal prosecutions, of rights put forward draft proposals employing similar wording for a federal constitutional provision guaranteeing the right against compelled self- 3 Representative Laurance was no stranger to the Self- incrimination. Each of the proposals broadly sought to Incrimination Clause; he was responsible for the limiting protect a citizen from "being compelled to give evidence phrase "in any criminal case," which was added to the Clause against himself." Virginia Proposal (June 27, 1788), 2 id. without any recorded opposition. See L. Levy, Origins of the at 841; New York Proposed Amendments (July 26, Fifth Amendment, The Right Against Self-Incrimination 424- 427 (1968). In support of this suggestion, Laurance noted that, 1788), id. at 913; North Carolina Proposed Declaration absent such a restriction, the Fifth Amendment was "a of Rights (Aug. 1, 1788), id. at 967; Rhode Island general declaration, in some degree contrary to laws passed." Proposal (May 29, 1790) (same suggestion made 1 Annals of Cong. 753 (J. Gales ed. 1834). Two prominent following the drafting of the Fifth Amendment), in N. commentators have suggested that "laws passed" likely refers Cogan, The Complete Bill of Rights 327 (1997). See to § 15 of the Judiciary Act of 1789 (then in the process of also, [*53] e.g., The Address and Reasons of Dissent of passage). See Levy, supra, at 425-426; Moglen, The Privilege the [****46] Minority of the Convention of the State of in British North America: The Colonial Period to the Fifth Pennsylvania to Their Constituents (Dec. 13, 1787) Amendment, in The Privilege against Self-Incrimination: Its (same suggestion), in 2 Schwartz, supra, at 665; 2 Origins and Development 258, n. 109 (R. Helmholz, et al., Debates on the Federal Constitution 111 (J. Elliot 2d eds. 1997). Section 15 provided that federal courts "shall have ed., 1854) (Mr. Holmes, Mass., Jan. 30, 1788) power in the trial of actions at law . . . to require the parties to (objecting that nothing prohibits compelling a person "to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under furnish evidence against himself"). Similarly worded circumstances where they might be compelled to produce the proposals to protect against compelling a person "to same by the ordinary rules of proceeding in chancery." furnish evidence" against himself came from prominent Judiciary Act of 1789, 1 Stat. 82. Section 15's grant of power voices outside the conventions. See The Federal to compel discovery in civil cases would have been Farmer No. 6 (1787), in Cogan, supra, at 333; Letter of inconsistent with an unrestricted Self-Incrimination Clause, Brutus, No. 2 (1788), in 1 Schwartz, supra, at 508. but only if the term "witness" in that Clause included persons who provide such physical evidence as "books" and "writings." In response to such calls, James Madison penned the Laurance's assertion thus suggests that the Framers believed Fifth Amendment. In so doing, Madison substituted the the Self-Incrimination Clause offered protection against such phrase "to be a witness" for the proposed language "to compelled production. give evidence" and "to furnish evidence." But it seems 4 likely that Madison's phrasing was synonymous with that A broad view of the term "witness" in the compulsory process of the proposals. The definitions of the word "witness" context dates back at least to the beginning of the 18th century. See Act of May 31, 1718, ch. 236, § 4, 1 Laws of and the background history of the privilege against self- Pennsylvania 112 (J. Bioren ed. 1810) (speaking of witnesses incrimination, both discussed above, support this view. "being admitted to [be] deposed, or give any manner of And this may explain why Madison's unique phrasing -- evidence" (emphasis added)).

Kyle Smith Page 19 of 20 530 U.S. 27, *54; 120 S. Ct. 2037, **2053; 147 L. Ed. 2d 24, ***47; 2000 U.S. LEXIS 3768, ****48 the accused shall enjoy the right . . . to have compulsory 524 (1886); 116 U.S. at 638-639 (Miller, J., concurring in process for obtaining witnesses in his favor." Soon after judgment). And the Court linked its interpretation of the the adoption of the Bill of Rights, Chief Justice Marshall Fifth Amendment to the common-law [*56] had occasion to interpret the Compulsory Process understanding of the self-incrimination privilege. 116 Clause while presiding over the treason trial of Aaron U.S. at 631-632. Burr. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CCD Va. 1807). Burr moved for the issuance of a But this Court's decision in Fisher v. United States, 425 subpoena duces tecum to obtain from President U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976), Jefferson a letter that was said to incriminate Burr. The rejected this understanding, permitting the Government Government objected, arguing that compulsory process to force a person to furnish incriminating physical under the Sixth Amendment permits a defendant to evidence and protecting only the "testimonial" aspects secure a subpoena [*55] ad testificandum, but not a of that transfer. 425 U.S. [**2054] at 408. In so doing, subpoena duces tecum. Id. at 34. The Chief Justice Fisher not only failed to examine the historical backdrop dismissed the argument, holding that the right to to the Fifth Amendment, it also required -- as illustrated compulsory process includes the right to secure papers by extended discussion in the opinions [****51] below in -- in addition to testimony -- material to the defense. Id. this case -- a difficult parsing of the act of responding to at 34-35. This Court has [****49] subsequently a subpoena duces tecum. expressed agreement with this view of the Sixth Amendment. See United States v. Nixon, 418 U.S. 683, None of the parties in this case has asked us to depart 711, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974). Although from Fisher, but in light of the historical evidence that none of our opinions has focused upon the precise the Self-Incrimination Clause may have a broader reach language or history of the Compulsory Process Clause, than Fisher holds, I remain open to a reconsideration of 6 a narrow definition of the term "witness" as a person that decision and its progeny in a proper case. who testifies seems incompatible with Burr's holding. And if the term "witnesses" in the Compulsory Process References Clause has an encompassing meaning, this provides reason to believe that the term "witness" in the Self- 81 Am Jur 2d, Witnesses 80, 82, 88, 102, 104, 105, Incrimination Clause has the same broad meaning. Yet 109, 114, 139, 141 this Court's recent Fifth Amendment act-of-production cases implicitly rest upon an assumption that this term USCS, Constitution, Amendment 5; 18 USCS 6002 has different meanings in adjoining provisions of the Bill of Rights. 5 L Ed Digest, Witnesses 74, 84 [****50] II L Ed Index, Self-Incrimination; [****52] Witnesses This Court has not always taken [***48] the approach to Annotation References: the Fifth Amendment that we follow today. The first case interpreting the Self-Incrimination Clause -- Boyd v. Taking of individual's bodily fluid or material for analysis United States -- was decided, though not explicitly, in or comparison as violating individual's rights under accordance with the understanding that "witness" Federal Constitution--Supreme Court cases. 132 L Ed means one who gives evidence. In Boyd, this Court 2d 1021. unanimously held that the Fifth Amendment protects a defendant against compelled production of books and Supreme Court's views as to what changes in papers. 116 U.S. 616, 634-635, 29 L. Ed. 746, 6 S. Ct. circumstances, other than death of accused, render

5 Accepting the definition of "witness" as one who gives or 6 To hold that the Government may not compel a person to furnishes evidence would also be compatible with my previous produce incriminating evidence (absent an appropriate grant call for a reconsideration of the phrase "witnesses against of immunity) does not necessarily answer the question him" in the Confrontation Clause of the Sixth Amendment. whether (and, if so, when) the Government may secure that See White v. Illinois, 502 U.S. 346, 365, 116 L. Ed. 2d 848, same evidence through a search or seizure. The lawfulness of 112 S. Ct. 736 (1992) (opinion concurring in part and such actions, however, would be measured by the Fourth concurring in judgment). Amendment rather than the Fifth.

Kyle Smith Page 20 of 20 530 U.S. 27, *56; 120 S. Ct. 2037, **2054; 147 L. Ed. 2d 24, ***48; 2000 U.S. LEXIS 3768, ****52 criminal case on direct review in Supreme Court, or issues in such case, moot as to preclude consideration of merits. 117 L Ed 2d 725.

Supreme Court's views as to application of Fifth Amendment privilege against self-incrimination to compulsory production of documents. 48 L Ed 2d 852.

Loss of privilege against self-incrimination by individual as result of his action or inaction occurring when he was not accused-- Supreme Court cases. 47 L Ed 2d 922.

Adequacy, under Federal Constitution, of immunity granted in lieu of privilege against self-incrimination-- Supreme Court cases. 32 L Ed 2d 869.

Physical examination or exhibition of, or tests upon, suspect or accused, as violating rights guaranteed by Federal Constitution--federal cases. 16 L Ed 2d 1332, 22 L Ed 2d 909.

[****53]

End of Document

Kyle Smith USCS Const. Amend. 5

Current through PL 114-248, approved 11/28/16

United States Code Service - Constitution of the United States > CONSTITUTION OF THE UNITED STATES OF AMERICA > AMENDMENTS > AMENDMENT 5

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Criminal actions--Provisions concerning--Due process of law and just compensation clauses.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Annotations

Case Notes

2. Particular Property

I. IN GENERAL

1. Generally

2. Purpose

3. Applicability

4. Relationship with other laws

5. Direct cause of action

6. Miscellaneous

II. PRESENTMENT OR INDICTMENT OF GRAND JURY

A. In General

7. Generally

8. Standing to assert right

Kyle Smith USCS Const. Amend. 8

Current through PL 114-248, approved 11/28/16

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Bail--Punishment.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Annotations

Case Notes

I. IN GENERAL

A. General Considerations

1. Generally

2. Relationship with other laws

3. Availability of damages

4. Miscellaneous

B. Applicability

5. Criminal prosecutions

6. --Pretrial detention

7. Deportation or removal

8. Military detainees

9. Other matters

C. Practice and Procedure

10. Damages

11. Exhaustion

Kyle Smith