US v. Pretlow, Crim. A. No. 90-328.

• Decision Date: 05 December 1991
• Docket Number: Crim. A. No. 90-328.
• Citation: 779 F. Supp. 758
• Parties: UNITED STATES of America v. Bilal PRETLOW.
• Court: U.S. District Court — District of New Jersey

779 F. Supp. 758

UNITED STATES of America v. Bilal PRETLOW.

Crim. A. No. 90-328.

United States District Court, D. New Jersey.

December 5, 1991.

COPYRIGHT MATERIAL OMITTED

Michael Chertoff, U.S. Atty. by Alberto Rivas, Kevin McCarthy, Leslie Fay Schwartz, Donna Krappa, Asst. U.S. Attys., Newark, N.J., for plaintiff.

Raymond R. Beam, Jr., Bloomfield, N.J., David Ruhnke, West Orange, N.J., for defendant.

Lawrence S. Lustberg, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J., for amicus curiae Ass'n of Criminal Defense Lawyers of New Jersey.

OPINION

HAROLD A. ACKERMAN, District Judge.

Bilal Pretlow, along with eight codefendants, was originally indicted on a variety of charges, including one substantive RICO count and one RICO conspiracy count. Among the racketeering acts alleged for these counts were the murders of Melanie Baker and Mutah Sessoms. On January 18, 1991, the United States filed a superseding indictment which added two further counts against Bilal Pretlow. More specifically, he was charged with intentionally causing the deaths of Melanie Baker and Mutah Sessoms while working in furtherance of a continuing criminal enterprise. Pursuant to 21 U.S.C. § 848(e)(1)(A), the government is entitled to seek the death penalty against Mr. Pretlow on either count. Accordingly, on that same date, the government filed Notices of Intention to seek the death penalty against Mr. Pretlow on both counts and filed Notices of Aggravating Factors.¹

Now before the court are a series of motions brought by Mr. Pretlow challenging numerous portions of the death penalty statute. More specifically, he argues that:

1. the statute is unconstitutional because it fails to provide for meaningful appellate review;

2. the non-statutory aggravating factor set forth in the government's Notice of Aggravating Factors must be dismissed because the statute's allowance for nonstatutory aggravating factors constitutes an unconstitutional delegation of legislative power and the statute's failure to require proportionality review when nonstatutory aggravating factors are considered renders the statute unconstitutional;

3. the statute is unconstitutional because it permits a relaxed evidentiary standard at the penalty phase which renders any finding unreliable;

4. the statute is unconstitutional as applied here because the aggravating factors listed at 21 U.S.C. § 848(n)(1) simply duplicate elements of the capital crimes with which Mr. Pretlow is charged rather than narrow the class of murders for which a death sentence may be imposed;

5. the aggravating factor listed at 21 U.S.C. § 848(n)(12)—that the offense was committed in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim—is unconstitutional both facially and as applied here;

6. the aggravating factor listed at 21 U.S.C. § 848(n)(9)—that the victim was particularly vulnerable due to her youth—is unconstitutional both facially and as applied here;

7. the prohibition against racial discrimination set forth in 21 U.S.C. § 848(o) is unconstitutional to the extent that it bars Mr. Pretlow from presenting relevant mitigating evidence;

8. Mr. Pretlow was arbitrarily singled out for exposure to the death penalty in violation of his fifth and eight amendment rights;

9. the government has vindictively sought the death penalty against Mr. Pretlow because of his refusal to plead guilty and, therefore, should be barred from further pursuing the imposition of that penalty;

10. the statute is unconstitutional because the death penalty constitutes cruel and unusual punishment in all circumstances.

In addition, the Association of Criminal Lawyers of New Jersey ("Association"), which has been granted leave to appear in this matter as amicus curiae, raises one additional argument not specifically mentioned by Mr. Pretlow. The Association asserts the statute is unconstitutional because it fails to permit a defendant from offering and the jury from considering the circumstances of the crime as a mitigating factor.² Not surprisingly, the government has opposed all of these arguments. I will now discuss each of them in turn.

I. Meaningful Appellate Review

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Supreme Court struck down the Georgia and Texas death penalty statutes. Id. at 239, 92 S.Ct. at 2727 (per curiam). Although there was little agreement among the majority as to the scope of its holding, one point of consensus was that the statute in question vested juries with the discretion to impose the death penalty in an arbitrary and capricious manner. See id. at 255-57, 92 S.Ct. at 2734-35 (Douglas, J., concurring: These death penalty statutes provide juries with unfettered discretion and, therefore, have been applied in a discriminatory manner); at 295, 92 S.Ct. at 2755 (Brennan, J., concurring: Imposition of the death penalty constitutes cruel and unusual punishment in part because of its infrequent and arguably arbitrary application.); at 309, 92 S.Ct. at 2762 (Stewart, J., concurring: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."); 313 (White, J., concurring: "There is no meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not."); 364-366 (Marshall, J., concurring: The death penalty is unconstitutional in part because it falls unfairly on the racial minorities and the poor.). After Furman was rendered, approximately two-thirds of the states, including both Georgia and Texas, revised their death penalty statutes to correct the constitutional infirmities highlighted by the various Justices. See Gregg v. Georgia, 428 U.S. 153, 179 & n. 23, 96 S.Ct. 2909, 2928 & n. 23, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). In a trilogy of Supreme Court cases, the amended statutes of Georgia, Texas, and Florida were challenged and upheld. See Gregg, 428 U.S. 153, 96 S.Ct. 2909 (upholding Georgia statute); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (upholding Florida statute); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (upholding Texas statute).

Among the statutory features the Supreme Court emphasized in its opinions upholding these statutes was the presence of "meaningful appellate review." See Gregg, 428 U.S. at 166-68, 198, 204-06, 96 S.Ct. at 2922-23, 2936, 2939-41, 49 L.Ed.2d 929 (opinion of Stewart, Powell, and Stevens, JJ.), at 222-225, 96 S.Ct. at 2947-49 (White, concurring in judgment, with whom Burger, C.J., and Rehnquist, J., join); Proffitt, 428 U.S. at 250-51, 96 S.Ct. at 2965-70 (opinion of Stewart, Powell, and Stevens, JJ.). Under the Georgia statutory scheme, meaningful appellate review included expedited direct review of a death sentence by the Georgia Supreme Court. In addition to the conventional appellate review available in all criminal cases, the Georgia appellate courts were specifically directed to determine whether or not the death penalty was imposed "under the influence of passion, prejudice, or any other arbitrary factor." Gregg, 428 U.S. at 166-67, 96 S.Ct. at 2922-23 (opinion of Stewart, Powell, and Stevens, JJ.). In cases other than those involving treason or aircraft highjacking, the appellate courts were also to consider whether or not the evidence supported the lower court's finding of a statutory aggravating factor. Finally, the appellate courts were to ascertain whether the imposition of the death penalty in the case under review was disproportionate to sentences imposed in other cases. Id. at 167, 96 S.Ct. at 2922. These appellate requirements, Justice Stewart explained, "serve as a check against the random or arbitrary imposition of the death penalty." Id. at 206, 96 S.Ct. at 2940. As such, they "afford additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here." Id. at 207, 96 S.Ct. at 2941; accord id. at 211, 96 S.Ct. at 2942 (White, J., concurring, with whom Burger, C.J., and Rehnquist, J., join).

In subsequent death penalty cases, the Supreme Court has repeatedly reiterated the need for meaningful appellate review. See Parker v. Dugger, ___ U.S. ___, 111 S.Ct. 731, 739, 112 L.Ed.2d 812 (1991) ("We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally."); Clemmons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 1448, 108 L.Ed.2d 725 (1990) ("This court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency."). At the same time, however, the Court has noted that meaningful appellate review may be accomplished through a variety of statutory schemes. Hence, it has refused to endorse one statutory scheme to the exclusion of all others. See, e.g., Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1983) (Comparative proportionality review by the appellate court which the Court had previously found to be a key part of the Georgia death penalty scheme is not constitutionally required.).

In this case, the death penalty statute at issue has specific provisions for appellate review. In pertinent part, it provides:

(1) In any case in which the sentence of death is imposed under this section, the sentence of death shall be subject to review by the court of appeals upon appeal by the defendant. Notice of appeal must be filed within the time prescribed for appeal of judgment in section 2107 of Title 28. An appeal under this section may be consolidated with an appeal of judgment of conviction. Such review shall have priority over all other cases.

(2) On review of the sentence, the court of appeals shall consider the record, the evidence submitted during trial, the information submitted during the

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