I. Constitutional Law: B. Criminal Law and Procedure

Article excerpt

1. Eighth Amendment--Death Penalty--Consideration of Invalid Sentencing Factors.--The practice of judging may be a pursuit of legal predictability, (1) but it is not only that. It is also a quest for coherence. Judges must undergird any doctrine with a coherent idea that binds varying situations in reasoned, expected, and therefore accepted, treatment before the law. (2) Such an idea has eluded capital punishment doctrine for a generation. Ever since the Supreme Court's enigmatic per curiam opinion in Furman v. Georgia (3)--with its multiple concurrences presenting competing rationales for greater procedural strictures on capital sentencing (4)--the doctrine has advanced in fits, starts, and diverging theoretical directions. (5) This incoherence has been especially apparent in the doctrine's distinction between states with "weighing" and those with "nonweighing" capital sentencing statutes. (6) Last Term, in Brown v. Sanders, (7) the Court brought a level of predictability to the weighing-nonweighing distinction by redefining it, holding that a sentencer's consideration of an invalid sentencing factor will not render a capital sentence unconstitutional if the facts and circumstances supporting that factor can be swept in under another valid sentencing factor. (8) But while the Court laid down a clear and predictable rule, it neglected to support it with a coherent and stabilizing theory.

In 1981, Ronald Sanders and an accomplice, John Cebreros, murdered Janice Allen. (9) Allen was the girlfriend of Dale Boender, a drug dealer. (10) Sanders and Cebreros had planned to attack Boender at his home to prevent him from identifying Sanders as the assailant who had assaulted Boender in a previous drug-related robbery attempt. (11) When Sanders and Cebreros invaded Boender's home and found him and Allen, they forced them to the floor, bound and blindfolded them, struck them both on the head, and stole drugs before fleeing. (12) Boender survived the attack. (13) Allen did not. (14)

A California jury found Sanders guilty of robbery, burglary, attempted murder of Boender, and first-degree murder of Allen, and it also found four "special circumstances" that rendered Sanders eligible for the death penalty (15) under California's capital punishment eligibility statute. (16) The jury then moved to the penalty phase of the proceeding. (17) Upon weighing a series of statutorily enunciated sentencing factors--including an "omnibus" evidentiary factor that encompassed "[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true [in the eligibility phase]" (18)--the jury sentenced Sanders to death. (19)

On automatic appeal, the California Supreme Court invalidated two of the four special circumstances that rendered Sanders eligible for death. (20) It invalidated a factor labeling the crime "heinous, atrocious or cruel" because it was unconstitutionally vague, and a burglary-murder factor because it violated state merger law. (21) Nonetheless, finding that these invalid factors did not affect the sentencing outcome, the court upheld the conviction. (22) Sanders then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of California. The district court denied the petition. (23)

The Ninth Circuit reversed and remanded. Writing for the unanimous panel Judge Fisher found that the sentencing statute's inclusion of eligibility factors in the list of penalty-phase sentencing factors made it a weighing system, which obligated the reviewing court to remand Sanders's case for reweighing, to reweigh the factors itself, or to determine that the inclusion of the invalid factors was harmless beyond a reasonable doubt. (24)

The Supreme Court reversed, holding that because under California's omnibus sentencing factor the jury could have properly considered the facts and circumstances underlying the invalidated factors, there was no constitutional defect in the sentencing procedure. …