Life-or-Death Confusion in the Law : State Supreme Court Realized Issue Wasn’t Only Semantics

As a linguist I think about the relation between the form and function of language--the connection between the way we talk and the effect we create. Usually it’s a pretty academic exercise. So I am both personally and professionally intrigued when semantic distinctions turn into real life-or-death decisions, as in the recent California Supreme Court decision in People vs. Brown.

A jury had found Albert Greenwood Brown guilty of first-degree murder with special circumstances for raping and killing a 15-year-old girl in Riverside in 1980, and had imposed a death penalty. The defense claimed error in both guilt and penalty phases of the trial, but the court majority overturned only the penalty verdict.

I was particularly intrigued with this decision because in the fall of 1984 I had been a member of a jury in an Alameda County capital case. Our decision to impose life imprisonment without possibility of parole, rather than death, turned on the very point discussed in the Brown decision.

At issue is the form of jury instructions in the penalty phase of a capital case. The law (the Briggs Initiative of 1978) mandates that the jury shall impose the death penalty if it finds that aggravating factors outweigh mitigating ones. If not, it must vote for life without possibility of parole.

To do their work properly, jurors must have a clear understanding of the relevant law. But as a linguist I find the wording of the statute enigmatic, and the instructions derived from it likely to lead to a verdict based on misunderstanding.

What has been called the “fuzz factor” is exceptionally high in the sentencing instruction. Several words are used that have meanings that are imprecise, ambiguous or strange. Jurors are instructed to “weigh” factors in mitigation and aggravation, but are given no clues about how the weighing is to be done.

Mitigation is an uncommon word, bad enough, but aggravation is worse--its meaning here ( worsening ) is far from its normal colloquial sense ( annoying ); neither word is defined by the statute. And, finally, shall is absent from contemporary Americans’ active vocabularies--we know what it means in print, but since we don’t use it ourselves we miss its nuances. Four such potent sources of confusion in one sentence are bound to create a miasma of uncertainty in jurors’ minds.

But that’s just the beginning. The deeper problem lies in the semantics of shall . According to the majority opinion written by Justice Joseph R. Grodin, “the statute should not be understood to require any juror to vote for the death penalty unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances.”

But, as a later footnote comments, the use of shall makes confusion likely. To the extent that we understand it at all, shall imposes a requirement: “You shall vote for X” is equivalent to “You are required to vote for X.” And, further, “You are required not to vote for not-X.” Yet, as Grodin notes, the law means to give the juror a choice between X and not-X--that is, life and death.

Justice Malcolm Lucas, in his dissent, seems to have missed this semantic point. He says that the “standardized jury instructions . . . are sufficiently clear to guide the jury.” But shall can only mislead.

To ensure that a jury is aware of its latitude to return a verdict other than death where it finds death an inappropriate punishment--even where “aggravation out-weighs mitigation”--the instructions must at least substitute may for shall , since the former, with its sense of permission, tacitly allows either sentencing option. Even so, replacing shall with may is a necessary but not sufficient clarification, because may does not always mean mere permission. It can come close to shall if the speaker has more power than the addressee.

A student who enters a professor’s office and is told, “You may sit down,” is unlikely to remain standing; in this context may is virtually an order. This would certainly be true for a judge instructing a jury. Therefore, to be sure of conveying the law correctly, the instructions should contain not only may but also an addendum along these lines: “Where aggravation outweighs mitigation, you are permitted to impose the death penalty-- but you are not required to do so. “

The jury that I served on received just such an instruction, and voted, with full understanding, for life without possibility of parole.

However Americans may feel about the death penalty, we all want to go on living in a law-abiding society. For a society to abide by its laws, its members must be able to understand them.

It is imperative that the language of our laws, particularly those that determine life and death, accurately communicate the intent of the people who framed them. The California Supreme Court is correct in its conclusion that, without clarification, the language of the Briggs Initiative will create intolerable confusion for jurors called on to make the awesome decision of whether a capital defendant is to live or die.