Richmond v. Cardwell

• Decision Date: 21 April 1978
• Docket Number: CIV 78-96 PHX-CAM.,No. CIV 77-703 PHX-CAM,CIV 77-703 PHX-CAM
• Citation: 450 F. Supp. 519
• Parties: Willie Lee RICHMOND, Petitioner, v. Harold J. CARDWELL and the Attorney General of the State of Arizona, Respondents. Jose Jesus CEJA, Arizona State Prison Inmate No. 33603, Petitioner, v. Harold CARDWELL, Respondent, and The Attorney General of the State of Arizona, Additional Respondent.
• Court: U.S. District Court — District of Arizona

450 F. Supp. 519

Willie Lee RICHMOND, Petitioner, v. Harold J. CARDWELL and the Attorney General of the State of Arizona, Respondents.

Jose Jesus CEJA, Arizona State Prison Inmate No. 33603, Petitioner, v. Harold CARDWELL, Respondent, and The Attorney General of the State of Arizona, Additional Respondent.

Nos. CIV 77-703 PHX-CAM, CIV 78-96 PHX-CAM.

United States District Court, D. Arizona.

April 21, 1978.

John M. Neis, Pima County Public Defender, Tucson, Ariz., Brice E. Buehler, Phoenix, Ariz., for petitioner.

John A. LaSota, Jr., Acting Atty. Gen., for respondents.

John P. Frank, Lewis & Roca, Phoenix, Ariz., amicus curiae.

OPINION and ORDER

MUECKE, District Judge.

The issues have been presented to this Court by way of two separate petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254, submitted by Petitioners Willie Lee Richmond and Jose Jesus Ceja, both of whom have been convicted of first degree murder and sentenced to death pursuant to A.R.S. § 13-454. These petitions have been treated together for the reason that they both raise substantially the same issues regarding the constitutionality of the Arizona death penalty cited above. Also participating on behalf of Paul William Jordan (also convicted of first degree murder and sentenced to death pursuant to the above statute), in the capacity of amicus curiae, are the NAACP Legal Defense Fund and the American Civil Liberties Union.

The primary issue raised and considered is the question of whether the Arizona death penalty statute, § 13-454, fails to meet constitutional standards by not adequately taking into consideration the character and record of the individual offender.

The petitioners argue that the mitigating factors listed in the statute are too narrow and fail to include considerations of the defendants' character, thereby making the statute violative of the Eighth Amendment of the United States Constitution.

MITIGATING FACTORS

The respondents argue that the statute was designed so as to comply with constitutional standards by not allowing unbridled discretion in the sentencing body, and all relevant factors could be considered under the statute in its present form.

Based on an analysis of pertinent decisions of the United States Supreme Court, the Arizona statute in question and cases by the Arizona Supreme Court construing it, and after hearing oral argument by the parties made to this Court on April 10, 1978, and after consideration of the pleadings and memoranda filed herein, it is the opinion of this Court that the Arizona death penalty statute is too restrictive regarding what mitigating factors the sentencing authority must consider and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution.

The United States Supreme Court in Furman v. Georgia, 408 U.S. 230, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), required state legislatures to devise statutory guidelines that would eliminate excessive discretion on the part of the sentencing authority and thereby avoid arbitrary and capricious application of the death penalty.

Since Furman, there have been a succession of United States Supreme Court opinions, all considering, inter alia, the question of what the nature of the sentencing authority's function is and what mitigating factors should be considered, so as to guarantee that imposition of the death penalty follows only after enlightened consideration of the individual, reflecting the fundamental respect for humanity that is intrinsic to the Eighth Amendment. See generally Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion).

The death penalty is a unique sanction, and as stated by Mr. Justice Stewart, "A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).

It is the consistent and emphatic policy of the United States Supreme Court, as expressed in the cases before and after Furman, that the sentencing authority be well informed, and that the circumstances of the offense, along with the character, record, and propensities of the offender must be given careful consideration before the death sentence is imposed. In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the court stated the following: "We have long recognized that `for the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.' Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937)." Id. at 189, 96 S.Ct. at 2932. Similar language is used with equal force in Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 296-297, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) citing Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Roberts v. Louisiana, 428 U.S. 325, 333-334, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976); and Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 1996, 52 L.Ed.2d 637 (1977). The Roberts case held that the Louisiana statute was unconstitutional for failure to allow consideration of "particularized mitigating factors." Further, the court stated, "it is essential that the capital sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to either the particular offender or the particular offense." Id. 1996. Cf. Jurek v. Texas, 428 U.S. 262, 273, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) sentencing authority can consider whatever mitigating evidence the defense submits.

Gregg, supra at footnote 38 citing Woodson stated, "Indeed we hold elsewhere today that in capital cases it is constitutionally required emphasis added that the sentencing authority have information sufficient to enable it to consider the character and individual circumstances of a defendant emphasis added prior to imposition of a death sentence."

It is thus beyond question that an individual offender's particular circumstances and character must be taken into consideration. However, the question becomes what specific considerations underlie the character and circumstances of a person convicted of first degree murder.

The Arizona Legislature has listed four mitigating considerations in A.R.S. § 13-454(F). Those are: (1) His capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired but not so impaired as to constitute a defense to prosecution. (2) He was under unusual and substantial duress, although not such as to constitute a defense to prosecution. (3) He was a principal, under § 13-452, Arizona Revised Statutes, in the offense, which was committed by another, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution. (4) He could not reasonably have foreseen that his conduct in the course of the commission of the offense for which he was convicted would cause, or would create a grave risk of causing, death to another person.

Factors absent in this statute are (to name a few), considerations of the defendant's age at the time the crime was committed, his prior record, and the amount and nature of his cooperation with authorities, whether his capacity at the time of the crime was affected by mental defect or intoxication. Theoretically, if any of the above were relevant they might by implication be considered under one of the four mitigating factors listed in the Arizona statute. However, the Arizona Supreme Court has held otherwise. In State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1977), the court held that the four mitigating factors in A.R.S. § 13-454 are exclusive. The court eliminates the possibility of implying relevant mitigating factors from the ones listed, by stating "we hold that subsection D authorizes the trial court to take into account only those mitigating circumstances enumerated in subsection F." Id. at 50. The Arizona Supreme Court's holding is obviously an attempt to conform the statute's interpretation to constitutional requirements as these were understood in light of the United States Supreme Court decisions then available by preventing the Arizona death penalty statute from being unconstitutionally ambiguous. The result is that certain considerations that may have fundamental relevance are, if not literally and specifically listed in the statute, ipso factor not subject to consideration.

This trend toward narrowing the relevant mitigating factors that can be considered is forcefully demonstrated in State v. Bishop, 118 Ariz. 263, 576 P.2d 122 (filed March 1, 1978) where it was ruled that lack of a prior conviction could not be considered for the reason that it was not listed among the mitigating factors in A.R.S. § 13-454(F). The court stated "According to our law, the trial judge is bound, as are we, to consider only those aggravating and mitigating factors listed in the statute." A.R.S. 13-454(D). Under the circumstances, the trial judge was correct "in refusing to consider appellant's lack of a prior conviction as a mitigating factor under A.R.S. § 13-454(F)." Id. at 269, 576 P.2d at 128. The respondents argue that the words "under the circumstances" do not refer to the paragraph preceding them but rather are a reference to the particular facts of the case. This possibility is foreclosed by footnote 4 of Bishop (referring to the above quote), wherein the court stated, "We have read those cases cited to us by appellant which hold that a defendant's conduct should be considered by the trial...