Pulley v. Harris

PETITIONER:Pulley
RESPONDENT: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

ADVOCATES:
Anthony G. Amsterdam – on behalf of the Respondent
Michael D. Wellington – on behalf of the Petitioner

Facts of the case

Question

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–

Byron R. White:

Proportionality to the crime.

Michael D. Wellington:

–Proportionality in the way this Court defined proportionality last term in Sollin v. Helm which includes, Your Honor an examination of whether it is proportional to the crime.

One of the points I made in my brief, and I think it is crucial to this decision, is that proportionality as this Court defined it very carefully last term and as this Court has used the concept in its previous cases, Endman v. Florida and Coker v. Georgia, is exactly, precisely the same proportionality analysis that the California Supreme Court has used for over a decade, first announced in the early ’70’s in In re Lynch.

It uses precisely the same three steps, even announced in precisely the same order as this Court has.

John Paul Stevens:

May I ask, further on Justice O’Connor’s question, does that mean they do not, in the California appellate system, compare this sentence with other similar cases throughout the state?

Michael D. Wellington:

Not on what Professor Amsterdam has called a cross-case comparative basis, Your Honor.

The primary distinction, I believe, between the kind of proportionality analysis that Harris is urging and that that we are urging is that… And, the Ninth Circuit, of course, agreed with Harris’ position, is that the Ninth Circuit position involves an examination of all of the aspects of each case, all the aggravating and mitigating circumstances of the case before the court, compared them with all the aggravating and mitigating circumstances with every other… either every other death penalty case or, under some argument, every other death eligible case that has arisen in the state since the drafting of the statute.

John Paul Stevens:

I thought they said that the California courts had started to do that after this case had been appealed.

Michael D. Wellington:

That is inaccurate, Your Honor.

That is inaccurate.

John Paul Stevens:

They are inaccurate or my reading of the opinion is inaccurate?

Michael D. Wellington:

The California courts have not–

John Paul Stevens:

Because the Ninth Circuit was inaccurate in thinking–

Michael D. Wellington:

–Absolutely, Your Honor.

John Paul Stevens:

–But, the Ninth Circuit did think they were doing that.

Michael D. Wellington:

That is apparent from the Ninth Circuit opinion.

John Paul Stevens:

Okay.

Michael D. Wellington:

The Ninth Circuit read two California Supreme Court cases, Frierson and Jackson, to constitute a promise by the State of California to conduct proportionality review.

I do not see any reasonable reading of either Frierson or Jackson that says that.

What Frierson and Jackson actually said is three things, in fact, when addressed with the question… faced with the question of whether the Constitution required proportionality review and whether the California statute was unconstitutional for its failure to include the proportionality review.

The California Supreme Court said first that they do not read the majority of the Justices’ opinions in Gregg to require the proportionality review.

Second, that, nonetheless, under California law, a disproportionate sentence would constitute error and what they referred to as well established proportionality principles, reference to the Lynch case, they were fully capable of addressing the issue of proportionality and that they had recognized in the past that that was part of California’s jurisprudence.

An examination of California Supreme Court cases, both death penalty cases and non-death penalty cases, makes it absolutely apparent that they do not conduct that review automatically in each case.

They conduct the review when the issue is raised.

And, they don’t conduct that review on this cross-case comparative basis that the Ninth Circuit and Harris have urged, rather just as this Court decided last year in Sollin.

It is an examination of broader factual questions, types of cases, categories of crime.

I think the essential point is that the Lynch test, which was adopted as to capital punishment in the Frierson and Jackson cases is precisely the same three-step test that this Court established last term in Sollin v. Helm.

So, returning back to Justice O’Connor’s question, what does the California Court do, the California Court provides a death sentence to defendant with a very clear three-step test as to what proportionality constitutes, precisely the same three-step test that this Court has provided death sentence defendants nationwide.

Byron R. White:

And is not a cross-case comparison.

Michael D. Wellington:

That is correct, Your Honor, it is not a cross-case comparative analysis.

Michael D. Wellington:

It is… I prefer frankly not to use the term “proportionality review”, because it implies some special kind of hearing.

It is a review of the question of the issue of proportionality, no different, except for the substantive issue itself, no different than a review of the voluntariness of confessions.

If the defendant has a case, he raises the issue and the court addresses it.

So, that was offered, Your Honor, to Mr. Harris in this case.

As the appeal was pending before the California Supreme Court, as the briefs were being written, the Frierson case expressly applied the eight-year old, at that time, Lynch test to capital punishment, applied to this growing issue of proportionality review, inviting, it would seem to me, Mr. Harris to raise the issue of proportionality if he was of the opinion that his sentence was in any way disproportionate.

Although Frierson was discussed in Harris’ case, in his brief–

William H. Rehnquist:

Mr. Wellington, from the way you describe the California Court’s approach to proportionality on the basis of In re Lynch, I take it one could have a proportionality review of a 50-year jail sentence under the–

Michael D. Wellington:

–Exactly, Your Honor.

William H. Rehnquist:

–if it is Sollin against Helm you are talking about.

Michael D. Wellington:

That is correct, Your Honor.

In fact, the proportionality analysis from Lynch from had been applied typically to non-death cases until Frierson and Jackson, at which point the Court made it clear that that same test was applicable to death cases.

Byron R. White:

So you still have the constitutional argument to make.

I guess.

Michael D. Wellington:

That is correct, Your Honor.

The position that the Ninth Circuit has taken very briefly is that this Court has already ruled on the issue of proportionality review and the only language on point, the only language in the entire opinion, the Ninth Circuit opinion, that addresses the federal Constitution issue is the notation that the California Court gave no indication that it had provided the proportionality review required by Gregg and Proffitt.

William H. Rehnquist:

Mr. Wellington, am I right in thinking that the Ninth Circuit opinion didn’t even cite our case against Jurek against Texas?

Michael D. Wellington:

That is correct, certainly not in what could be called the holding, Your Honor.

Yes.

Michael D. Wellington:

It was cited in the opinion, but–

William H. Rehnquist:

But not on that point.

Michael D. Wellington:

–That is right, notwithstanding my repeated argument that Jurek stands for the proposition that no such proportionality review is required.

I don’t think it is necessary, given the time given in the brief for the issue, it is not necessary to go over the Gregg, Proffitt, and Jurek cases here.

The point that I have that I think is clear is that this Court did not in those cases demand proportionality review as part of the death sentence.

That is the issue here.

All this Court did in those cases is approve, once they had proportionality review as apart of its statutory system, approve one state, Florida, which the Supreme Court has said it would conduct a proportionality review exactly the same way California has and reading of the Florida cases shows that sometimes they examine proportionality, sometimes they don’t examine proportionality.

They, like California, address the question when it is raised.

Of course, there is Texas which has no such provision at all.

I think it is important in looking at the constitutional Eighth Amendment question here to draw the strong distinction between cross-case analysis and what I would refer to as review of proportionality.

This Court’s decisions, the Furman decision and the Gregg decision, have expressed a very strong concern about the issue of arbitrariness.

The procedures that were referred to in the Gregg series of cases whereby it would be ensured that a jury, a sentencing jury, or any sentencing authority would be given fully informed, guided discretion in their decision, was designed to ensure a freedom… a system designed to be free from arbitrariness.

Michael D. Wellington:

That was the focus of those cases, a concern that the petitions be free of arbitrariness.

That is not all, however, that this Court has provided for that area.

In addition to requiring the states to establish a system, a statutory system designed to avoid arbitrariness, there is the separate issue of proportionality that this Court has discussed for almost a century since the Weems case and most recently in the context of the death penalty has discussed in the Coker versus Georgia case, Endman versus Florida, and last term I think most clearly coalesced in the Sollin v. Helm case.

The Court has said that no matter what the statutory system is, no matter how well defined it is, there still must be a proportionality to the judgment, even if they are a result of a presumptively valid system.

They must be proportional, and if, as is the case in the death sentence for rape in Coker and in the death sentence for a non-personally committed, non-intentional murder in Endman, if they are disproportionate, then that has to be a way to review that.

California has no argument with that.

California has used that standard for over a decade.

What California urges is that it must be the kind of review that this Court discussed in Helm for a couple of very good reasons.

One has to do with the traditional–

Warren E. Burger:

We will resume at 1:00, Mr. Wellington.

Mr. Wellington, you may continue.

Michael D. Wellington:

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

When we broke at noon I was beginning my examination of the Eighth Amendment argument on the question of proportionality review.

I think the most useful way to approach the issue is to begin with a look at what this Court was concerned about in Furman and Gregg as to the constitutionality of the death penalty and that is arbitrariness and I believe that all of the arguments having to do with the question of proportionality and whatever particular brand of that applies here are really addressed to the question of controlling arbitrariness.

The Court in Gregg established procedures which states have followed to ensure against arbitrariness, but the idea of proportionality is essentially intended as a second line of defense in the individual case against the possibility of an arbitrary result being produced by one of the state systems.

Unless we are to have two very different constitutional motions of proportionality that this Court announced in the Helm case last term and some new one to be announced applicable to death penalty cases, then I think we have to rely on what this Court has said in Helm, which was based on the state work done earlier in both Coker and in Endman, which is precisely the same sort of proportionality that the State of California has offered its death sentence defendants, and, in fact, all defendants for well over a decade.

John Paul Stevens:

Mr. Wellington, may I ask a question about that?

As I understand your position, it is sort of like any other appellate review of sentencing.

He just has to raise the question.

He has a right to have it heard.

Michael D. Wellington:

That is correct, Your Honor.

John Paul Stevens:

And, he did not, in fact, do so on his direct appeal in this case?

Michael D. Wellington:

He did not.

John Paul Stevens:

Did he do so on his state habeas corpus proceeding?

Michael D. Wellington:

He did not address the issue of the proportionality of his sentence as the California Supreme Court has envisioned proportionality and as this Court has envisioned proportionality.

There was an allegation among the cloud of allegations in his petition that the California statute… They operated arbitrarily in that some others have been spared under circumstances no less deserving of the death penalty than Mr. Harris’ petition.

That is not the consideration that this Court has announced–

John Paul Stevens:

Let me ask it this way.

Did he, in the state proceeding, raise the question that the Court of Appeals for the Ninth Circuit seems to have decided?

Michael D. Wellington:

–He did demand a proportionality review and to the extent… That is what the Ninth Circuit concluded that he had a right to, yes.

John Paul Stevens:

And, did he get that proportionality review in the state system?

Michael D. Wellington:

He did not get the proportionality review he demanded, Your Honor.

The distinction has to be drawn.

John Paul Stevens:

Why didn’t he?

Michael D. Wellington:

Because there is no right to it under state law or under the federal Constitution, Your Honor.

What I am urging is that there is a right to have a court consider a claim that a particular sentence is disproportionate under the terms of California and federal cases.

That claim was not made.

Mr. Harris has never said that his sentence was disproportionate in the terms that that word is used, that phrase is used under California cases and the federal constitutional cases.

He has only said I want my review, I want the wheels to spin.

John Paul Stevens:

He wants this across-the-board review.

What if you were to make that claim right now?

Would it be open to him?

Michael D. Wellington:

Would it be open to him?

John Paul Stevens:

Yes.

Or must it be made on direct review?

That is the question I am–

Michael D. Wellington:

I am sorry, I didn’t hear.

John Paul Stevens:

–Would he have waived it by failing to request it on his direct appeal?

Michael D. Wellington:

I am not arguing that Harris has waived.

It seems to me under–

John Paul Stevens:

That is not my question.

My question is if he were to make the claim for the first time, that is the one you say is available to him as a matter of California law, could he now make it?

Michael D. Wellington:

–It is not clear, Your Honor, but I believe that he could.

I believe that under the California habeas corpus system he would be empowered to file another petition.

What he would have to do is convince the court that there was a prima facie case made of disproportionality so that a writ would be granted.

He still has the statutory power to file another writ.

Byron R. White:

Your kind of proportionality.

Michael D. Wellington:

That is correct, Your Honor.

Byron R. White:

Not a cross case?

Michael D. Wellington:

Not a cross case of proportionality unless, of course, he has some authority for that by that time.

Michael D. Wellington:

That is what I am here, of course, trying to avoid.

Byron R. White:

Yes.

Michael D. Wellington:

I think it is important that we look at why the cross case comparative proportionality review is a terrible constitutional idea and it is so for practical reasons as well as theoretical ones.

The proportionality review this Court has talked about in Sollin is something the courts can do.

It involves an examination of broad range of human behavior, rape of an adult woman, murder committed by someone who wasn’t there and didn’t intend murder.

And, it involves an examination of how such broad ranges of conduct are treated by the legislatures and by the courts.

The cross-case comparative review that Harris and the Ninth Circuit speak of, if it is to be done as it is clearly intended, every factor that may be legitimately constitutionally considered by a jury would have to be cranked into that analysis.

The courts, the tort courts that conducted this review would have to consider the entire range of considerations justifiably before a jury.

I would urge that is simply not possible.

I would urge two things.

It is simply not possible for any one court to compare the hundreds of cases that would be before them, some… for this Court to do it, some 1200 nationwide in all of their particulars.

It would be directly contrary to this Court’s language, Justice Powell’s language, writing for the majority in Sollin, where the Court said that absent some specific authority, it is not the role of the appellate court to substitute its judgment for that of the sentencing courts as to the appropriateness of a particular sentence.

If we are to look at all of the factors that go into a sentencing authority’s determination to condemn a man, then necessarily, unavoidably, the Court doing that is going to wind up substituting its judgment for that of the sentencing authority.

That is something that is not only as a practical matter impossible, it goes far beyond what appellate courts are constituted to do, far beyond what this Court has set its rule out to be with regard to the state sentencing courts.

This Court’s role has been announced in its proportionality cases and is to examine the broad limits within which a jury’s discretion is to operate.

That is exactly what the Sollin case, what the Coker case, and the Endman case do.

It examines broad limits and expressly returns to the jury or leaves with the jury the power and even the obligation to operate using its own judgment within those limits.

To give you an idea of how difficult it would be for a court to exercise this sort of cross-case analysis, two facts which continually strike me about this case would have to be considered.

There is the picture that remains so strongly with me of Robert Harris, after killing these two teenaged boys, sitting down eating their hamburgers and laughing at his younger brother for not having the stomach to do the same thing.

That is something properly committed to the jury, that picture, their making their own decision as to what kind of person is this and what kind of judgment should be handed down with regard to him.

There is the picture of Robert Harris flicking a bit of flesh off the end of his pistol and laughing about how he sure blew that blonde boy’s brains out.

That is properly commended to the jury for their consideration on the issue of death.

But, if we are to do a cross-case analysis of all death penalty cases in the nation, some court is going to have to find a way to assign a qualitative value to those–

Byron R. White:

There isn’t any claim that a state needs to look at all the cases in the country.

Michael D. Wellington:

–I am sorry.

Well, speaking just within a state, the California Supreme Court–

Byron R. White:

Yes, all right.

Michael D. Wellington:

–would have to look–

Byron R. White:

It is not the nation, it is the state.

Michael D. Wellington:

–Although the issue specifically in this case is that, Your Honor, and yet, as this Court has applied proportionality, proportionality analysis, it has done the analysis on a nationwide basis.

Michael D. Wellington:

So, it certainly could be extended to the nation.

But, looking just at the California Supreme Court’s obligation as it is envisioned by the Ninth Circuit, they would have to look at those two factors, those two factual matters, as well as the hundreds of others presented in a case, find some way to compare them in their own minds, in their own hearts, with matters just as horrible but quite different in another case.

There is no other case in California, probably not in the nation, that featured facts of the type, of the two types I just mentioned, and the facts in this case would deal with several of those, but there is no other case that has exactly that sort of behavior.

So, doing a cross-case analysis is going to have to have find some way to assign like a number value to those kinds of facts that then compares to the number value assigned to the parade of horribles in some other case to judge the jury’s determination.

This is not the way this Court has operated with juries.

I would urge that this is not the way the federal Constitution envisions any court operating with juries.

What happens in the death-sentencing process is, in my view, a very spiritual determination is made by whatever body, whether it be a judge sitting as a sentencing authority or whether it be the jury.

A very spiritual decision is made as to this individual, guided by the information and the statutory guidance within a state.

That decision holds within itself all of the factors, all of the factors.

Byron R. White:

Mr. Wellington, would you think that the federal Constitution might dispense with this cross-case proportionality review in a particular state and insist that it be performed in another because of the differences in the capital punishment system or would you think that if the Constitution doesn’t require this cross-case proportionality in California, as you are arguing, it wouldn’t anywhere?

Michael D. Wellington:

If it does not require it in California, Your Honor, it does not require it anywhere with one exception.

Byron R. White:

What, for example, if it didn’t require it in Texas?

Would that mean it wouldn’t be required any place?

Michael D. Wellington:

Absolutely, Your Honor.

Absolutely, Your Honor, unless… There are two unlesses there.

I need to do two caveats to that.

Unless a court were to find a state that did not provide the assurances against arbitrariness that the–

Byron R. White:

Now you are qualifying your answer.

Michael D. Wellington:

–Well, certainly, Your Honor.

Byron R. White:

Well, certainly.

Well, where might the proportionality, cross-case proportionality review be required?

You were about to tell me, weren’t you?

Michael D. Wellington:

I was hoping to, Your Honor.

Byron R. White:

Yes.

Michael D. Wellington:

I can imagine a court finding that a state did not meet the Gregg requirements of informed, guided discretion and concluding that nonetheless, because it had a cross-case comparative approach that might counterbalance the deficit.

However, in a case like California, which clearly meets the requirements set out in Gregg, the informed, guided discretion–

Byron R. White:

You have said before you interpret Gregg as not critically depending on proportionality review.

Michael D. Wellington:

–I think that is correct, Your Honor.

Byron R. White:

I mean cross-case proportionality.

Michael D. Wellington:

That is correct, Your Honor.

Byron R. White:

You would have a different view if that were a critical part of Gregg?

The California system might then be in trouble.

Michael D. Wellington:

I think perhaps not, Your Honor, because the–

Byron R. White:

Perhaps not.

Michael D. Wellington:

–Well, there is Proffitt and there is Jurek decided at the same time.

Jurek, of course, has not only no cross-case analysis, it has no indication there is any proportionality review at all.

Proffitt–

Byron R. White:

Well, is the California system like the Georgia system, more like Georgia than Florida?

Michael D. Wellington:

–As to proportionality review, Your Honor?

Byron R. White:

No, just as a system of–

Michael D. Wellington:

Yes, in–

Byron R. White:

–It certainly is more like Georgia than it is Texas.

Michael D. Wellington:

–I would say so, yes.

I think that is clearly so, Your Honor, although it would appear to me that the system in Texas, involving answering the three questions, can be seen as providing far fewer safeguards than the California system.

The California system at the very least provides the safeguards the Florida system does and the proportionality review, the machinery for reviewing proportionality in California is certainly as efficacious as that in Florida.

Byron R. White:

Your kind of proportionality.

Michael D. Wellington:

That is correct, Your Honor, my kind of proportionality.

Byron R. White:

All right.

Michael D. Wellington:

I think that… I think it is important that we look at the role of the jury as this Court has envisioned it in death penalty cases as expressing the conscience of the community and–

Warren E. Burger:

Your time has expired now.

Michael D. Wellington:

–Thank you, Your Honor.

Warren E. Burger:

Mr. Amsterdam?

Anthony G. Amsterdam:

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

I would just like to make three points to the Court this afternoon in response to Mr. Wellington’s argument.

First, I should like to explain why I disagree with Mr. Wellington’s answer to Justice O’Connor’s question and Justice Stevens’ question as to what California law is and why I believe that California law may well offer all of the proportionality review that we are asking for in this case and more.

California law in short is not limited to Sollin v. Helm.

Secondly, I would like to argue that this Court’s decisions plainly imply, if they do not already squarely held, that federal Eighth Amendment review is also, in death cases, not limited to Sollin v. Helm.

And, finally, I would like to clear up any question as to what Harris asked for in the state courts to demonstrate that he has asked in the state courts for exactly the kind of proportionality review that California law does, in fact, allow and that we urge the Eighth Amendment allows.

I will then ask that the judgment below for those reasons be affirmed.

Warren E. Burger:

Eighth Amendment allows or compels?

Warren E. Burger:

Does the Eighth Amendment allow proportionality review or compelled it?

Anthony G. Amsterdam:

The Eighth Amendment compels, California law allows Eighth Amendment review, proportionality review.

Let me start with California law and then I will move to the Eighth Amendment.

The important thing to keep in mind about California law is that it is in evolution, that none of us is very sure at the moment exactly what California law does provide or what the California Supreme Court does do.

In Lynch, the California Supreme Court announced a decision which was quite like this Court’s decision in Sollin v. Helm.

However, as the California cases, which are collected in our brief in note 18 at pages 32 to 33 indicate, California has gone well beyond that.

The Rodriguez, for example, holds that 22 years imprisonment for a child molester is clear and unusual punishment because it is disproportionate under California law, something I suggest goes rather well beyond Sollin v. Helm.

Moreover, in a case which was decided since we filed our brief, although it is cited in the reply brief at page 34, which is People v. Dillon, the California Supreme Court reduced a first degree murder conviction to second degree murder because it violated the California prohibition against excessive punishments.

It was clearly first degree murder within the statute.

William H. Rehnquist:

Mr. Amsterdam, is that a state constitutional provision which you refer to as the California prohibition against exclusive punishment?

Anthony G. Amsterdam:

State.

The California clear or unusual punishment clause, yes.

Yes.

Anthony G. Amsterdam:

The Dillon case, the defendant was clearly within the first degree murder statute.

It was a killing in the course of a robbery.

Moreover, the California Supreme Court held that the defendant had killed intentionally which was why it reduced this punishment to second degree, which in California is intentional murder.

Now, we have an intentional killing, one, I might add, which was done by nine bullet wounds in the course of a robbery.

And, the California Supreme Court, which could have held that that punishment was not excessive, indeed, which could have held under this Court’s decision in Gregg, that the death penalty was not excessive for an intentional killing, went ahead and reduced under California law the sentence of life imprisonment, and, indeed, reduced the degree of offense from first degree murder to second degree murder.

Now, to come to Justice Stevens’ question and a question Justice White has also been asking, what about cross-case review.

There is the beginning of that in Dillon.

Dillon finds that the death penalty was excessive… Excuse me, that the first degree murder conviction and a life sentence was excessive on the facts of the Dillon case largely because of individual characteristics of the defendant.

But, the court adds, and I am now reading from 194 California Reporter, at page 420,

“finally, the excessiveness of defendant’s punishment is underscored by the petty chastisement handed out to the six other youths who participated with him in the same offenses. “

Although this was a conspiracy to commit robbery and a murder in the course of it and all of the coparticipants were guilty of robbery and murder under California law, the Court says the one member of the gang who was an adult was allowed to plead no contest to charges of conspiracy to commit robbery and all of the other minors were simply made wards of the court.

Says the court in short defendant received the heaviest penalty provided by law while those jointly responsible with him received the lightest, the proverbial slap on the wrist.

Now, of course, this is not cross-case comparison in the sense of some other murder case, but it is a beginning of comparing the death sentence with other sentences, those meted out to Dillon’s accomplices in this offense.

Moreover, in the Dillon case, in a footnote, 26… Again, I am referring to 194 California Reporter at 413, Footnote 26, the court cites with approval California Court of Appeals cases, including the Keogh case and the Vargas case, which is cited in our brief in Footnote 18.

The Keogh case does exactly what Justice Stevens and Justice White have been asking about.

It engages in cross-case comparison.

Keogh involved a sentence of four consecutive sentences for forgery as a result of which the defendant ended up with a 64-year sentence.

Anthony G. Amsterdam:

The Court of Appeals, in an opinion by Justice Jefferson, looked at the median term of imprisonment served by forgers in California, found that few of them went to jail at all and when they did it was for 22 to 24 months, and on that kind of a comparison proceeded to invalidate, again, Justice Rehnquist, under the California cruel or unusual punishment clause, the Lynch clause, the punishment imposed on Keogh.

Now, I think it is indisputable that California law goes well beyond Sollin v. Helm.

It goes beyond, although it is in evolution and it is unclear exactly how far it has gone so far, it goes beyond anything that we need to ask for in order to get the relief that we have requested in this case which is to have the California Supreme Court compare other death sentences and life sentences in comparable cases with Harris.

William H. Rehnquist:

Mr. Amsterdam, if you are correct, I take it it is your submission that the California law has changed between the time that Harris’ state court proceedings took place and now.

Anthony G. Amsterdam:

Justice Rehnquist, I am not sure I recall that it changed.

There is an evolution of the Lynch doctrine, like any doctrine which starts out with a principle and then evolves–

William H. Rehnquist:

If it isn’t an actual change, why didn’t the Supreme Court of California do for Harris what the Ninth Circuit did for him?

Anthony G. Amsterdam:

–I have no idea.

That is all we are asking for.

William H. Rehnquist:

Well, certainly the state of the law so far as Harris versus the People are concerned is probably best found in the case involving Harris versus the People, isn’t it?

Anthony G. Amsterdam:

The only effect of the decision below is to take the case back to the California Supreme Court and then they will have a chance to take a look at it.

William H. Rehnquist:

Well, they have had one chance and they have given no indication they want a second chance.

Anthony G. Amsterdam:

Well, I am not sure that is entirely true.

They have had one chance.

There has been no decision on the merits of the proportionality review issue.

The Ninth Circuit below squarely found, and I don’t think there can be any question, that the California Supreme Court has not, on the merits, given Harris proportionality review.

Sandra Day O’Connor:

What right would there be for a federal court in a habeas case to send it back to a state court for a matter of state law?

None whatever.

How could the Ninth Circuit do that anyway if you were right?

Anthony G. Amsterdam:

There is no… The reason for that, Justice O’Connor, is that there are three other claims in this case which the Ninth Circuit has sent back to the Federal District Court for a hearing on the merits.

That ruling has not been challenged in this Court by California.

The question of why it should go back to state court is why any unexhausted federal habeas petition goes back to state court.

William H. Rehnquist:

But, if the Ninth Circuit passed on it, why were they passing on an unexhausted claim?

Anthony G. Amsterdam:

The Ninth Circuit?

If this is an unexhausted claim in your view, why did the Ninth Circuit consider it at all?

Because there is–

William H. Rehnquist:

You can’t have it both ways.

Anthony G. Amsterdam:

–Perhaps I misspoke myself when I said an unexhausted claim.

Technically it is exhausted under the technical rule of Roberts v. LaVallee.

We have been into the state courts.

Anthony G. Amsterdam:

And even though, as Your Honor points out, state law changed under Roberts, we are still technically exhausted.

Why the Ninth Circuit passed on the claim was that the California courts had all refused to stay Harris’ execution.

He was due to die–

William H. Rehnquist:

Isn’t that a pretty good indication that the California courts thought that he was constitutionally punished?

Anthony G. Amsterdam:

–No, I don’t think that is so.

I think that this case, in effect, slipped between the cogs in the California court system.

Harris’ brief in the California Supreme Court was filed before the California Supreme Court had decided in the Jackson case that proportionality review was required.

Frierson preceded the filing of Harris’ brief, but Frierson was only a minority opinion on the question of requiring a proportionality review.

After Harris’ brief was filed, Jackson was decided.

The proportionality requirement of Frierson became a majority requirement, and then Harris’ case was simply dealt with by saying we dealt with all these issues in Jackson.

There was no look on the facts of this case at any question of whether Harris’ penalty fit his crime.

I think the easiest way to see what the California courts did was to see what they said.

The California opinion in Harris’ case says at the beginning, we find no merit in any of these claims, but since this is a death case, we are going to talk about all of the issues we are to decide.

Then it goes ahead an decides 15 distinct questions, none of which have anything to do with the fitness of the death sentence.

I think it is inconceivable, reading an opinion like that, to say that the California courts, in fact, gave Harris proportionality review.

Now, there is… Whether because the law has changed or is changing, there is no doubt that there has been an evolution over the course of the term that Harris has been in the courts in California law.

At the moment, we believe that the latest pronouncements of the California Supreme Court suggests that it is at least very likely that California law allows Harris to review his–

William H. Rehnquist:

Well, if you are correct, I take it even if the decision we are arguing about now were reversed, Harris could go back into the California courts and get exactly what the California courts think he ought to have.

Anthony G. Amsterdam:

–Agreed.

And, the only question, therefore, is whether a federal stay of execution should remain in effect while he does so and that is the only effect of the decision below.

The decision below does nothing more than send him back to the California courts and that is why we have been urging that it stands Rose v. Lundy on its head, it stands this Court’s usual reluctance to reach federal constitutional questions unnecessarily on its head, for this Court to go ahead and decide the Eighth Amendment issue when two things are true.

One, California law may give Harris what he wants, and, two, the only effect of the decision below is to send him back to that court to ask the court to keep him alive.

William H. Rehnquist:

But, one of our responsibilities, as well as to avoid deciding unnecessary constitutional questions ourselves, is to see that courts of appeals and district courts don’t unnecessarily wallow into federal constitutional error.

And, certainly, if you are right, that is what the Ninth Circuit did here.

Anthony G. Amsterdam:

We would have–

William H. Rehnquist:

Do you agree with me or not?

Anthony G. Amsterdam:

–We would have no problem if this Court were to vacate the ground of decision below, say that there is no need to reach an Eighth Amendment question in this case because California law is still unclear and affirm the decision below on the ground that the only relief given in fact below was to say that the California court had to take a look at this issue.

William H. Rehnquist:

How we could both vacate and affirm which you have suggested in a single sentence?

Anthony G. Amsterdam:

The only effect of the judgment below is to give interim relief while Harris proceeds to–

Byron R. White:

What constitutional basis is there for that?

Byron R. White:

We just can’t say we think it would be a good idea to look at this case again and stay the state’s… and just derail the state system.

Just because we think that the California courts made a state law mistake or something we should send it back to them and stay their… just stay any further proceedings against Harris?

Anthony G. Amsterdam:

–Well, in non-death cases, if an unexhausted petition is filed, the appropriate disposition of it–

Byron R. White:

This is exhausted you tell us.

You have just said it was technically exhausted.

Anthony G. Amsterdam:

–It is technically exhausted, but the policies behind the exhaustion doctrine, which are that if the state court may still give relief in this case, it makes no sense for the federal courts to go jumping in with both feet.

Those policies still apply.

Now, in a non-death case, the effect of the application of those policies would be to give no relief and simply say to the prisoner go back to state court.

In a death case, however, where the state courts refuse to stay execution and it is imminent, the federal courts may act and here is the jurisdictional reason–

Byron R. White:

And the state court refuse to give relief because they have decided that his conviction and his sentence are in accordance with state law and the federal court is suppose to say you really don’t understand state law to the state courts?

Anthony G. Amsterdam:

–The federal court would only act if there was a viable federal issue and the only reason why it would act is to say we are not ready to reach that issue because there are still state issues that may resolve this case.

And, in a situation like that, the court is confronted with the question, do we let the fellow die–

Byron R. White:

But, if the state courts refused to stay his execution and reject any state law claim, how can the federal court nevertheless sustain them or say that you should take another look at it?

Anthony G. Amsterdam:

–It has to come back into federal court in any event.

There are three other issues in this case that are already in federal court on the merits.

The question is… There are really only three options to the court below and we are asking this Court of approve one of them.

One, to let Harris die despite the fact that there are claims clearly ready for hearing in a federal court and a claim that it makes sense to send back to the state courts; to go ahead and adjudicate the Eighth Amendment question and other questions, which we do not think is appropriate; or to say we will stay his execution, we will wait until the California Supreme Court has clarified whether state law gives him the kind of proportionality review that he is asking for, and then we will take all of the federal issues at once and decide them as Rose v. Lundy contemplates.

William H. Rehnquist:

When was the Supreme Court of California’s decision, what year, affirming Harris’ conviction?

Do you remember?

Anthony G. Amsterdam:

When?

William H. Rehnquist:

When, what year?

Anthony G. Amsterdam:

It was in… February 11, 1981.

William H. Rehnquist:

How soon do you suppose this litigation would finally become final if the courts were to follow your suggestion?

Anthony G. Amsterdam:

Harris would immediately file in the California Supreme Court a request for proportionality review.

According to the decision, the court below would have to begin such a process in four months and it could have as much time as it then wanted to reach judgment on it.

There is one–

John Paul Stevens:

May I ask a question?

I am still somewhat puzzled.

In his collateral proceeding in the state court, did he raise the across-the-board proportionality review issue?

Anthony G. Amsterdam:

–Yes.

John Paul Stevens:

Well, then he lost in that case, including in the California Supreme Court, did he not?

Anthony G. Amsterdam:

We are talking now about the California state habeas corpus petition?

John Paul Stevens:

Yes.

Anthony G. Amsterdam:

He raised it and the California Supreme Court denied the petition without issuing an alternative rule to show cause, which means they did not get to the merits.

John Paul Stevens:

But, they had an opportunity in that proceeding to do precisely what the Ninth Circuit has now said they should do.

Anthony G. Amsterdam:

I agree.

There is no question in the world what the California Supreme Court did with this case other than to say go away.

It is very unclear.

We are not contending that it is clear what they did.

What I am contending is simply that, since it is unclear what they did, and since California law has now evolved to the point where it may very well give the kind of relief which we are seeking under the Eighth Amendment–

John Paul Stevens:

But, Mr. Amsterdam, is it not true that California law had so evolved by September of 1982, which is when… No, March of 1982, wasn’t it, that they denied the… the California Supreme Court denied the collateral review?

Anthony G. Amsterdam:

–Ah–

John Paul Stevens:

I mean for there to be a change it has to be after the denial of collateral review for it to be relevant, doesn’t it?

Anthony G. Amsterdam:

–Well, again, California has turned their sharp corners.

It is difficult looking backwards to say exactly what California was or wasn’t at a given time.

It is true that the cases at that time didn’t go as far as Dillon does now and as far as the cases go now, all the more reason, we think, why the California court ought to get another crack at it.

The only–

Byron R. White:

You think it ought to get another crack at reading what it does or what it might read into the Ninth Circuit opinion about whether cross-case proportionality review is constitutionally required?

Anthony G. Amsterdam:

–We would urge, as we did in the state habeas petition, that the California court give that kind of cross–

Byron R. White:

Well, I know, but didn’t the… Isn’t there substantial indication in the Ninth Circuit opinion that there is a federal constitutional requirement?

Anthony G. Amsterdam:

–The Ninth Circuit opinion finds it a federal constitutional requirement.

Byron R. White:

What do you think the California courts would do in the face of that?

Anthony G. Amsterdam:

We believe that the Ninth Circuit was right on the merits.

We also believe this Court need not reach the question.

I will be glad to get why we believe it is right on the merits.

Byron R. White:

Well, if you are going to send it back to the California courts, in the face of this holding by the Ninth Circuit, what do you think the California courts would do?

I mean they might feel compelled to give them proportionality review even if it wasn’t required under state law.

Anthony G. Amsterdam:

The Ninth Circuit decision clearly holds that it is required under the Eighth Amendment whether or not it is required under state law.

We are prepared to uphold that view on the merits.

Byron R. White:

I think it might be helpful if you argued–

Anthony G. Amsterdam:

Let’s just take a look at exactly what the Eighth Amendment status of proportionality review is.

Byron R. White:

–Cross-case proportionality.

Anthony G. Amsterdam:

Cross-case proportionality review.

I agree with Mr. Wellington on one point which is that the place one has to look to find the answer to the Eighth Amendment question is in the Gregg, Proffitt, Jurek cases and that explanation of what is demanded of a state… that sentencing scheme.

Recently this Court summed up in a very few words what is demanded by saying that what is demanded is that the states apply the death penalty with reasonable consistency or not at all.

Now, the kind of review which is required, we contend, by the Eighth Amendment is only so much appellate review as is required to produce reasonable consistency.

What a court needs to do is to look at the facts of the case in front of it, to look at the judgments and the facts of comparable cases and to ask whether, in the class of case, including this one, the death penalty has been so infrequently and erratically imposed that the concerns of Furman are violated.

And, the state seems to concede that that is necessary in its reply brief.

The court says that… The state in its reply brief says that Harris has not contended… This is on page 23… Harris has not shown and it cannot be shown that either an overwhelming majority or a significant minority of legislatures, courts, or juries in states with capital punishment have acted to repudiate death as a punishment for such crimes as Harris’.

There is no way in which Harris could show or in which a court could find that courts and juries in similar cases have repudiated the death penalty unless Harris is permitted to lay in front of a court, and we say the California Supreme Court, the facts of his case and the judgments rendered in comparable cases so that the court can ask the question, looking at the pool of cases like Harris’, has the death penalty been so infrequently applied, so irregularly applied, that the considerations which brought about this Court’s Furman decision apply to Harris’ death sentence.

That is all that is involved.

It isn’t some special mystic, it is not some special rule, it is simply a straightforward application of the requirement of this Court that consistency in death sentencing is a pre-condition of constitutional death sentences.

Warren E. Burger:

Just what do you mean by a comparable case?

I think you used that term.

What elements must be the same?

Must the victim be the same age or approximately the same age, must the murder have been committed in the same way, the events after the murder, must they all be compared?

Anthony G. Amsterdam:

The state court has very considerable leeway on all those questions.

Warren E. Burger:

How do they do it?

Anthony G. Amsterdam:

How do the state courts do it?

Yes.

Anthony G. Amsterdam:

A variety of ways.

Some state courts look at all first degree murders and then they say do the aggravating circumstances in this case and the aggravating circumstances in that case match those of three, four, or five.

After they have found that, they say is death or is life the norm in those other cases.

Some states say it is limited to other cases of first degree murder in which the same aggravating circumstance is found.

There isn’t any one way to do it.

There are very sophisticated ways to do it and very simply ways to do it.

I would suggest that this Court has, in a sense, done it itself.

As far as we are concerned nothing more is constitutionally required than what this Court did in similar judgments in Furman.

For example, Justice White’s opinion in Furman said essentially I have seen a number of these cases come through.

I am left with an abiding conviction, after looking at numbers of these cases, that uniformity and even-handedness are lacking, that some people are going to death while others exactly the same live.

Anthony G. Amsterdam:

All we said is that the federal Constitution requires a state appellate court of general jurisdiction to look at the cases passing through the tubes and make exactly that kind of judgment.

Byron R. White:

Would it be enough for you if instead of calling up on the record all the cases, the judges just said we have a firm conviction, having seen all these cases, that the death penalty conforms to the norm here?

That is all they say.

Anthony G. Amsterdam:

If the California Supreme Court looks at cases and says that–

Byron R. White:

Well, it says we have… All these cases comes before us and we have the general impression now and conviction that this sentence is not out of line or would they have to go through the whole litany, this case, that case?

Anthony G. Amsterdam:

–That is right.

I am not contending for one minute that the Eighth Amendment tells the state supreme court how to write its opinion.

If the court demonstrates that it has engaged in the kind of look at–

Byron R. White:

They just do it by memory.

They don’t go back to the records and look at them all again, they just do it by memory.

They say we have seen all these cases and this case just isn’t out of line.

Anthony G. Amsterdam:

–Can they do it by memory?

Again, I think that they have to listen to counsel’s argument.

If counsel says here are these other various cases… Whether a judge believes that he or she remembers the facts of the case ago, reads it in a brief, I have never thought the Constitution imposed any restraints on that.

As long as the court does a conscientious job of looking to see whether the death penalty in a kind of case like the one at bar is so erratic that the court can say this is not the regular and evenhanded imposition of a death penalty.

So long as they make that check, that is all the federal Constitution requires.

John Paul Stevens:

Mr. Amsterdam, if they must do something, it is not enough to rely on their memory.

You say they must look at the cases to which counsel calls to their attention.

Did counsel in this case call any court’s attention to other cases similar to this?

Anthony G. Amsterdam:

Oh, yes.

The state habeas petition… For example, there were alleged nine cases that had been decided on appeal, but there were seven other cases that were said to be multiple murder cases like Harris’ that the court ought to look at.

The state habeas petition essentially took this position.

The state habeas petition said, and alleged with great specificity and supporting facts, Mr. Wellington’s position to the contrary notwithstanding, it alleged with great specificity that–

John Paul Stevens:

Is that petition in the Joint Appendix?

Anthony G. Amsterdam:

–Sir?

John Paul Stevens:

Is that petition in the Joint Appendix?

Anthony G. Amsterdam:

No.

The state petition was somewhat different than the federal petition, although the McCabe affidavit to both petitions is the same and that gives the general tenor of the state position.

The state proceedings are not in the federal court record unhappily.

John Paul Stevens:

Now, the federal habeas petition, does that have the same kind of showing in it?

Anthony G. Amsterdam:

The McCabe affidavit and the allegations in the federal petition, yes, at… If you look at the federal habeas petition at pages 5, etcetera.

Byron R. White:

Where do we find that?

Anthony G. Amsterdam:

Particularly paragraphs 1 and 5.

Warren E. Burger:

Do we have that before us?

Anthony G. Amsterdam:

Of the federal habeas petition.

Warren E. Burger:

Is that material here in the record?

Anthony G. Amsterdam:

I simply wanted to get–

Warren E. Burger:

Is it in the record now before this Court?

Anthony G. Amsterdam:

–The federal habeas petition is in the paragraphs to which I have referred are.

They are not printed in the Joint Appendix, but they are in the record.

Moreover, the McCabe affidavit, which is the crucial thing and presents the comparative cases, is attached to the federal habeas petition as well.

Warren E. Burger:

Your time has expired now, Mr. Amsterdam.

Your time has been used up too.

Thank you, gentlemen, the case is submitted.