Pulley v. Harris

LOCATION: Clifford Residence

DOCKET NO.: 82-1095
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 465 US 37 (1984)
ARGUED: Nov 07, 1983
DECIDED: Jan 23, 1984

Anthony G. Amsterdam - on behalf of the Respondent
Michael D. Wellington - on behalf of the Petitioner

Facts of the case


Media for Pulley v. Harris

Audio Transcription for Oral Argument - November 07, 1983 in Pulley v. Harris

Warren E. Burger:

Mr. Wellington, you may proceed whenever you are ready.

Michael D. Wellington:

Mr. Chief Justice, and may it please the Court:

This case arises in the context of the ten-year effort on the part of the states to establish constitutionally valid death penalty laws.

Harris was tried under California's 1977 statute enacted in response to this Court's series of decisions in the Gregg series of cases.

And, his claims that the California's statute was unconstitutional, in part because its perceived lack of proportionality review had been denied at all state levels.

His direct appeal was affirmed and his habeas corpus petition was narrowly denied by the California Supreme Court which, at that point, vacated its stay of execution and essentially remitted him to the executioner.

The United States District Court also denied habeas corpus relief, holding, as the California courts had, that proportionality review, at least as envisioned by Harris, was not demanded by the federal Constitution.

After the District Court denied relief, appeal was taken to the Ninth Circuit.

The Ninth Circuit issued the ruling that we are concerned with here, ruling that this Court's decisions in Gregg and in Proffitt commanded the conducting of a proportionality review by the state, essentially commanding a comparative proportionality review, and also holding that the California courts had on their own required the holding of a proportionality review.

Now, we sought cert. from the Ninth Circuit holding to clarify, and in my view, correct the holding of the Ninth Circuit that the Gregg cases required proportionality review.

And specifically to correct the holding that California cannot execute Mr. Harris until that review has been conducted.

There are four points that I am hoping to raise here today.

The first one, in response to Professor Amsterdam's invitation to this Court to not decide the issue, I am going to urge that the issue must be decided on the merits.

Second, I wish to address the concept of proportionality and what that term means in this case and to urge that proportionality in this context means precisely what this Court said that it means at the end of last term in Sollin v. Helm and in some previous cases this Court has decided.

The third point that I am hoping to reach is the question of what review is necessary on the issue of proportionality and I am going to urge that the review of that issue is no different than the review commanded of any other constitutional issue; that is it is an issue that should be addressed by the Court if raised by counsel, if raised by the parties, if raised on a supportive record.

And, finally, I am going to urge that this Court should rule as a matter of law that death for personally and intentionally inflicted murder is not disproportionate, something the Court has come very close to doing on two prior occasions.

Now, I would like to begin--

Sandra Day O'Connor:

Mr. Wellington, I would like to ask you if at some time you would explain to us in your view what is the procedure that California courts follow in the review of death cases.

It isn't altogether clear to me precisely what it is that the California courts, the appellate courts at the highest level, would look to.

Michael D. Wellington:

--Certainly, Justice O'Connor.

Under the California statutes, every death sentence is automatically appealed to the California Supreme Court and that court reviews any contentions of error raised by the defendant, the appellant, in that court.

That is the scope of review in that court.

Essentially, it is the same as with any other appeal to the California Supreme Court with the one exception that in death-sentence cases each death-sentence defendant has an automatic right to have his issues heard by the California Supreme Court.

So, the court reviews the issues that are raised by the parties, raised by the defendants.

That is what happened here, Your Honor.

Sandra Day O'Connor:

All right.

And, if the defendant seeks a proportionality review, then that court would make it?

Is that what you are saying?

Michael D. Wellington:

What I am saying, Your Honor... I am saying that in essence and perhaps I had best step back just for a second to explain what I perceive proportionality review to be, to explain how the California courts are constituted to give it and has been giving it, in fact, where it has been asked for.

That is that I say proportionality review is an addressing by either the California Supreme Court or this Court in an appropriate case of the proportionality of the sentence actually meted out by the sentencing authority and that review--