SUPREME COURT OF THE UNITED STATES

Nos. 93–5131 and 93–5161

PAUL PALALAUA TUILAEPA, PETITIONER

93–5131	v.

CALIFORNIA

WILLIAM ARNOLD PROCTOR, PETITIONER

93–5161	v.

CALIFORNIA

on writs of certiorari to the supreme court of california

[June 30, 1994]

Justice Stevens, with whom Justice Ginsburg joins, concurring in the judgment.

As these cases come to us they present a question that the Court answered in Zant v. Stephens, 462 U. S. 862 (1983). California, like Georgia, has provided a procedure for determining whether a defendant found guilty of murder is eligible for the death penalty. Petitioners have not challenged the constitutionality of that procedure or its application in these cases. Accordingly, our decision rests on the same assumption that we made in Zant, namely that the statutory procedure for determining eligibility adequately confines the class of persons eligible for the death penalty to a narrow category in which there is a special justification for "the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Id., at 877.

The question is whether, in addition to adequately narrowing the class of death-eligible defendants, the State must channel the jury's sentencing discretion when it is deciding whether to impose the death sentence on an eligible defendant by requiring the trial judge to characterize relevant sentencing factors as aggravating or mitigating. In Zant we held that the incorrect characterization of a relevant factor as an aggravating factor did not prejudice the defendant; it follows, I believe, that the failure to characterize factors such as the age of the defendant or the circumstances of the crime as either aggravating or mitigating is also unobjectionable. Indeed, I am persuaded that references to such potentially ambiguous, but clearly relevant, factors actually reduces the risk of arbitrary capital sentencing.

Prior to the Court's decision in Furman v. Georgia, 408 U. S. 238 (1972), in a number of States the death penalty was authorized not only for all first-degree murders, but for less serious offenses such as rape, armed robbery, and kidnaping as well. Moreover, juries had virtually unbridled discretion in determining whether a human life should be taken or spared. The risk of arbitrary and capricious sentencing, specifically including the danger that racial prejudice would determine the fate of the defendant, persuaded a majority of the Court in Furman that such capital sentencing schemes were unconstitutional. The two principal protections against such arbitrary sentencing that have been endorsed in our subsequent jurisprudence focus, respectively, on the eligibility determination and the actual sentencing decision.

First, as Chief Justice Rehnquist writing for the Court in Lowenfield v. Phelps, 484 U. S. 231 (1988) succinctly stated: "To pass constitutional muster, a capital sentencing scheme must `genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'" Id., at 244 (quoting Zant v. Stephens, 462 U. S., at 877). When only a narrow sub-class of murderers can be subjected to the death penalty, the risk of cruel and unusual punishment—either because it is disproportionate to the severity of the offense or because its imposition may be influenced by unacceptable factors—is diminished. See McCleskey v. Kemp, 481 U. S. 279, 367 (1987) (Stevens, J., dissenting). Because those risks can never be entirely eliminated, however, the Court has identified an additional safeguard to protect death-eligible defendants from the arbitrary imposition of the extreme penalty.

In Lockett v. Ohio, 438 U. S. 586, 602–605 (1978), then-Chief Justice Burger emphasized the importance of requiring the jury to make an individualized determination on the basis of the character of the individual and the circumstances of the crime. Insisting that the jury have an opportunity to consider all evidence relevant to a fair sentencing decision reduces the danger that they might otherwise rely on an irrelevant and improper consideration such as the race of the defendant. In Zant, even though the trial judge had incorrectly characterized the defendant's prior history of "assaultive offenses" as a statutory aggravating circumstance, we found no constitutional error because the evidence supporting that characterization was relevant and admissible. 462 U. S., at 887–889. We made it clear, however, that it would be error for a State to attach the "aggravating" label to, or otherwise authorize the jury to draw adverse inferences from, "factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant." Id., at 885.

The three penalty-phase factors in California's statute that are challenged in this case do not violate that command. Matters such as the age of the defendant at the time of the crime, the circumstances of the crime, and the presence or absence of force or violence are, in my opinion, relevant to an informed, individualized sentencing decision. Under Lockett, the defendant has a right to have the sentencer consider favorable evidence on each of these subjects, and under Zant it is permissible for the prosecutor to adduce unfavorable evidence on the same subjects. If, as we held in Zant, it is not constitutional error for the trial judge to place an incorrect label on the prosecutor's evidence, it necessarily follows that refusing to characterize ambiguous evidence as mitigating or aggravating is also constitutionally permissible. Indeed, as I have indicated, I think the identification of additional factors that are relevant to the sentencing decision reduces the danger that a juror may vote in favor of the death penalty because he or she harbors a prejudice against a class of which the defendant is a member.

Accordingly, given the assumption (unchallenged by these petitioners) that California has a statutory "scheme" that complies with the narrowing requirement defined in Lowenfield v. Phelps, 484 U. S., at 244, I conclude that the sentencing factors at issue in these cases are consistent with the defendant's constitutional entitlement to an individualized "determination that death is the appropriate punishment in a specific case." Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).