Justices to Hear Death Penalty Challenge

The Supreme Court agreed to hear a major challenge to California’s death penalty law Monday, one that could potentially upset dozens of death sentences imposed before 1987.

The case, to be heard by the court in the fall, centers on whether the instructions given to jurors in capital cases in California unfairly lead them to impose a sentence of death, rather than life in prison without parole.

Under the state’s 1978 capital punishment law, jurors are told that, “If you conclude that the aggravating circumstances (in the murder case before you) outweigh the mitigating circumstances, you shall impose a sentence of death.”

This instruction is similar to those used in many states and reflects earlier Supreme Court rulings. In 1972, the justices threw out all the nation’s death sentence laws on the ground that they were too “arbitrary,” often leading convicts to face execution when prisoners in equivalent or less severe cases got lighter sentences.

In 1976, the court reinstated the death penalty in states that provided “guided discretion” to prosecutors, judges and jurors. Many states such as California responded with a law that spelled out a series of factors that should be considered when deciding a killer’s fate.

Under the law, “aggravating circumstances” include whether the murder was committed in a robbery or another serious crime. Counterbalancing or “mitigating circumstances” can include evidence that the killer was abused as a child.

But recently, the justices seemed worried that the new laws may give jurors too much guidance and not enough discretion. Two months ago, the court announced it would hear a challenge to Pennsylvania’s death sentence law which, like California’s, says jurors “shall” impose a death sentence based on certain factors. The court’s liberals believe that these jury instructions, including words such as “shall impose,” act to mandate death sentences and extinguish compassion and mercy.

In 1987, the California Supreme Court recognized this problem and urged a refinement in the jury instructions. Now juries are told to weigh all the evidence and make their own decision based upon it. The state Supreme Court, on a 4-3 vote, said it did not intend to invalidate all the death sentences imposed earlier.

The U.S. Supreme Court hearing could could affect up to eight of the 20 local men who now sit on Death Row pending their appeals, said James G. Enright, chief deputy district attorney in Orange County.

Enright said he welcomes the prospect of a definitive ruling: “We can really live with or without the ‘shall’ instructions to the jury, as long as somebody clearly lets us know what the instructions should be. It’s always been so haphazard, and what we need is a firm set of rules to let us know what’s OK and what’s not.”

The case to be heard by the high court concerns Richard T. Boyde, who was convicted of killing a convenience store clerk in Riverside County in 1981. The state Supreme Court upheld’s Boyde’s death sentence on a 4-3 vote in August.

Santa Monica lawyer Dennis A. Fischer said the case “provides a striking example of how prosecutorial indoctrination may exploit” a jury into believing it must impose a death sentence. He pointed out that the Supreme Court has said in the past that a sentence should be based on “individualized” judgments by jurors, not simply a mechanical adding up of various factors.

Attorneys for the state say the jury instructions when read in their entirety make clear that the jury in Boyde’s case weighed all the evidence. “This instruction simply precludes arbitrary and capricious decisions. We expect to prevail in this case,” said Frederick R. Millar Jr., a supervising deputy state attorney general in San Diego.

The case of Boyde vs. California is expected to be decided next year.