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THOMAS, J.,
Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
503 U.S. 159
Dawson v. Delaware
No. 90-6704
Argued: Nov. 12, 1991 ---
Decided: March 9, 1992
Justice THOMAS, dissenting.
To rebut mitigating character
evidence introduced by petitioner Dawson at his capital sentencing
hearing, the State of Delaware proved that Dawson belonged to the
Aryan Brotherhood [p170] prison gang. The Court
holds that the gang membership evidence "ha[d] no relevance to the
issues being decided in the proceeding," and that admission of the
evidence violated the First Amendment. Ante at 160. I
respectfully dissent.
I
Dawson's membership in the Aryan
Brotherhood prison gang had relevance at sentencing. Under Delaware
law, after a jury finds a statutory aggravating factor, it may
consider "all relevant evidence in aggravation or mitigation" relating
to either the crime or the "character and propensities" of the
defendant. Del.Code Ann., Tit. 11, § 4209(d)(1) (1987). Under this
provision, Dawson's character became an issue in determining whether
he should receive the death penalty.
To prove his good character, as
the Court observes, Dawson introduced evidence that he had acted
kindly toward his family, and that he had earned good time credits
while in prison. Ante at 162. Dawson also introduced evidence
of his membership and participation in various respectable
organizations, including the Green Tree Program (described only as a
"drug and alcohol program"), Alcoholics Anonymous (not described at
all), and certain therapy and counseling groups (also not described at
all). App. 79. Dawson did not call any expert witnesses to clarify the
nature of these organizations or their activities.
The State attempted to rebut
Dawson's mitigating character evidence in part by showing that Dawson
also belonged to a prison gang called the Aryan Brotherhood. A
stipulation read to the jury explained:
The Aryan Brotherhood refers
to a white racist prison gang that began in the 1960's in California
in response to other gangs of racial minorities. Separate gangs
calling themselves the Aryan Brotherhood now exist in many state
prisons, including Delaware.
Id. at 132.
[p171] I do not consider the evidence of Dawson's
gang membership irrelevant to his character.
A
The Court asserts that the gang
membership evidence had no relevance, because it did nothing more than
indicate Dawson's "abstract" racist "beliefs." Ante at 167. The
Court suggests that Dawson's membership in a prison gang would be
relevant if the gang had endorsed or committed "unlawful or violent
acts" such as drug use, escape, or the murder of other inmates.
Ante at 165, 166. Yet, because the State failed to prove the Aryan
Brotherhood's activities, the Court reasons, the jury could do no more
than infer that Dawson shared the gang's racist beliefs. Ibid.
I disagree. In my judgment, a jury reasonably could conclude from
Dawson's membership in a prison gang that he had engaged in some sort
of forbidden activities while in prison. The evidence also tended to
establish future dangerousness, and to rebut Dawson's attempt to show
that he was kind to others.
Jurors do not leave their
knowledge of the world behind when they enter a courtroom, and they do
not need to have the obvious spelled out in painstaking detail. Just
as defense counsel may assume when introducing mitigating evidence
that a jury understands the nature of a church choir, a softball team,
or the Boy Scouts, so too may a prosecutor assume when rebutting this
evidence that a jury knows the nature of a prison gang. The concept of
a prison gang is not so mysterious that it requires an encyclopedic
definition or a greater explanation than any of the other
organizations to which Dawson belonged, such as Alcoholics Anonymous
or the Green Tree Program. Cf. Jones v. Hamelman, 869 F.2d
1023, 1028 (CA7 1989) (testimony of a purported expert unnecessary to
explain a prison gang once the record established its existence);
United States Dept. of Justice, Prison Gangs: Their Extent, Nature and
Impact on Prisons 10 (1985) (discussing the "extensive" media coverage
of prison gangs). [p172]
In stating that Dawson belonged to
a prison gang, the stipulation implied much more than that he shared
the gang's abstract racist creed; it indicated that Dawson had engaged
in prison gang activities, and that he had the character of a person
who engages in these activities.
One of the distinguishing
characteristics of the prison gang is the virtual absence of any
non-criminal, non-deviant activities. Gang members engage in some
institutional pastimes, weight lifting being one of the more
notable, but in general their activities are criminal or deviant in
nature. The gang member is completely immersed in being a career
prison gangster, leaving little time and less inclination for other
than asocial behavior.
U.S. Dept. of Justice, supra,
at x-xi. Denying that Dawson's gang membership told the jury anything
about his activities, tendencies, and traits -- his "character" --
ignores reality. What Judge Easterbrook remarked when others attempted
to distinguish gang membership from gang activities, someone reading
the Court's opinion might say today:
Who do they think they are
fooling? What elements of "membership" -- as opposed to "activity"
-- take place [in the prison]? What are prison gangs for, except to
engage in forbidden "activity?" Surely [they] do not believe that
prison gangs meet every month to discuss The Critique of Pure
Reason and debate how Stanley Tigerman's buildings differ from
those of the Bauhaus school. Gangs affiliate for mutual support, but
not the kind contemplated by the National Labor Relations Act.
David K. v. Lane, 839 F.2d
1265, 1278 (CA7 1988) (concurring opinion). In my view, the
stipulation was relevant to Dawson's character because it explained
that the Aryan Brotherhood was a prison gang, and that Dawson was a
member. That evidence, I submit, supports an inference that, while in
prison, [p173] Dawson engaged in the kind of
unlawful activity mentioned by the Court.
[n1]
The description of the Aryan
Brotherhood as a "racist" prison gang conveyed additional information
about Dawson's character. In Barclay v. Florida, 463 U.S. 939 (1983), the plurality found it relevant that a
black gang conspired not merely to commit crimes, but to commit them
against white persons out of racial hatred. See id. at 949.
Even if Dawson's white racist prison gang does not advocate "the
murder of fellow inmates," ante at 165, a jury reasonably could
infer that its members in one way or another act upon their racial
prejudice. The stipulation itself makes clear that the Aryan
Brotherhood does not exist merely to facilitate formulation of
abstract racist thoughts, but to "respon[d]" to gangs of racial
minorities. The evidence thus tends to establish that Dawson has not
been "a well-behaved and well-adjusted prisoner," Skipper v. South
Carolina, 476 U.S. 1, 4 (1986), which [p174]
itself is an indication of future dangerousness, see Franklin v.
Lynaugh, 487 U.S. 164, 178 (1988) (plurality opinion); id. at
186 (O'CONNOR, J., concurring in judgment).
The stipulation also tend to rebut
Dawson's evidence of good character. In capital cases, we have held
that the sentence imposed should reflect a "‘reasoned moral response'"
not only to the crime, but also to the "‘background'" and "‘character'"
of the defendant himself. See Penry v. Lynaugh, 492 U.S. 302, 328 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring)). In
determining Dawson's "personal culpability," Penry, supra, 492
U.S. at 327, the jury surely would want to know about the various
activities, traits, and tendencies that distinguish him as a "uniquely
individual human bein[g]," Woodson v. North Carolina, 428 U.S. 280, 304 (1976). Dawson introduced mitigating
character evidence that he had acted kindly towards his family. The
stipulation tended to undercut this showing by suggesting that
Dawson's kindness did not extend to members of other racial groups.
Although we do not sit in judgment of the morality of particular
creeds, we cannot bend traditional concepts of relevance to exempt the
antisocial.
B
The Court's opinion suggests that
the Constitution now imposes a double standard for determining
relevance: a standard easy for defendants to satisfy, but difficult
for prosecutors. Under Eddings v. Oklahoma, 455 U.S. 104"]455
U.S. 104 (1982), and 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion), a capital
defendant has a right to introduce all relevant mitigating evidence.
Capital defendants, as a result, regularly introduce character
evidence that allows juries to consider their abstract beliefs and
associational rights. Dawson, for example, introduced evidence that he
associated with Alcoholics Anonymous and other groups. Other
defendants have introduced comparable evidence regarding their
religious practice and fraternal organizations. See, e.g., Jordan
[p175] v. State, 518 So.2d 1186,
1188 (Miss.1987) (membership in a church); Sivak v. State, 112
Idaho 197, 236, 731 P.2d 192, 231 (1986) (same); Deputy v. State,
500 A.2d 581, 598 (Del.1986) (religious rebirth); People v.
Belmontes, 45 Cal.3d 744, 797, 755 P.2d 310, 340 (1988) (same);
Evans v. McCotter, 790 F.2d 1232, 1242, and n. 10 (CA5 1986) (conversion
to Christianity); State v. Beuke, 38 Ohio St.3d 29, 43, 526 N.E.2d
274, 289 (1988) (former membership in the Cub Scouts). I see no way to
hold that this evidence has relevance, but that Dawson's gang
membership does not.
A double standard for determining
relevance may distort the picture presented to the jury. In this case,
Dawson himself chose to introduce evidence of certain good character
traits. Unless the State had responded with evidence of other, bad
traits, the jury could not possibly have made a fair and balanced
determination. Membership in Alcoholics Anonymous might suggest a good
character, but membership in the Aryan Brotherhood just as surely
suggests a bad one. The jury could not have assessed Dawson's overall
character without both.
Just last term, in Payne v.
Tennessee, 501 U.S. 808 (1991), the Court condemned a similar
distortion. Overruling Booth v. Maryland, 482 U.S. 496 (1987),
and South Carolina v. Gathers, 490 U.S. 805 (1989), we held
that the Eighth Amendment does not generally prohibit the
introduction of victim impact evidence. See Payne, supra, at
827. We reasoned that allowing the jury to consider the defendant, but
not the victim, would create an unbalanced picture. Quoting a
dissenting opinion in Booth, we stated:
"[T]he State has a legitimate
interest in counteracting the mitigating evidence which the
defendant is entitled to put in, by reminding the sentencer that,
just as the murderer should be considered as an individual, so too
the victim is an individual whose death represents a unique loss to
society and in particular to his family."
Payne, supra, at 827 (quoting
Booth, 482 U.S. at 517 (WHITE, J., dissenting)); see also
482 U.S. at 520 [p176] (SCALIA, J., dissenting)
("Many citizens have found one-sided, and hence unjust, the criminal
trial in which a parade of witnesses comes forth to testify to the
pressures beyond normal human experience that drove the defendant to
commit his crime. . . . Perhaps these sentiments do not sufficiently
temper justice with mercy, but that is a question to be decided
through the democratic processes of a free people, and not by the
decrees of this Court"). Whatever distortion was produced in requiring
an exclusive focus on the defendant's character, at least nothing in
Booth prevented the jury -- as does today's decision -- from
fairly and fully assessing that character.
II
The Court acknowledges that
Delaware could have avoided any First Amendment problem simply by presenting evidence that
proved something more than Dawson's abstract beliefs. Ante at
167. For the reasons that I have stated, I believe that Delaware has
made such a showing. I therefore see no First Amendment violation under the Court's analysis. The
Court, however, goes on to make several further assertions about the First Amendment that I find troubling and unnecessary in
this case.
A
Both Dawson and the State, as
noted above, had a right to develop the issue of "character" at the
sentencing proceeding. See Del.Code Ann., Tit. 11, § 4209(d)(1)
(1987); Eddings, 455 U.S. at 113-114. In applying the First Amendment, however, the Court declines to decide
whether abstract beliefs may constitute a portion of character. "[W]hatever
label is given to the evidence," the Court asserts, "we conclude that
Dawson's
First Amendment rights were violated . . . in this case. .
. . " Ante at 167. As a consequence, to the extent that
abstract beliefs make up part of a person's character, the decision
today limits the aspects of character that sentencing authorities may
consider. [p177]
We long have held that the
Constitution permits courts and juries to consider character evidence
in sentencing proceedings. See Williams v. New York, 337 U.S. 241, 247 (1949). Until today, we have never hinted
that the First Amendment limits the aspects of a defendant's
character that they may consider. To the contrary, we have emphasized
that the sentencing authority may
appropriately conduct an
inquiry broad in scope, largely unlimited either as to the kind of
information he may consider, or the source from which it may come.
United States v. Tucker, 404 U.S. 443, 446 (1972).
In Williams, for example,
we upheld a New York law that encouraged the sentencing judge to
consider evidence about the defendant's "past life, health, habits,
conduct, and mental and moral propensities," 337 U.S. at 245, a phrase
easily broad enough to encompass a substantial amount of First Amendment activity. Writing for the Court, Justice
Black specifically identified religion and interests as sentencing
considerations that may "give the sentencing judge a composite picture
of the defendant." Id. at 250, n. 15.
More recently, in Franklin v.
Lynaugh, all five Members of the Court who addressed the issue
agreed that religious activity may bear upon a defendant's character.
See 487 U.S. at 186 (O'CONNOR, J., concurring in judgment) ("Evidence
of . . . religious devotion might demonstrate positive character
traits"); id. at 190 (STEVENS, J., dissenting) ("Evidence of .
. . regular church attendance" is relevant to character).
[n2] Although the opinions in Franklin endorsed
[p178] consideration of religious activity
as a mitigating factor, the endorsement necessarily disfavors
abstention from religious activity, which the First Amendment also protects.
The Court nowhere explains why
courts and juries may consider some First Amendment protected activities when assessing
character, but they cannot consider others. Today's decision, moreover,
does not define the boundaries of permissible inquiry into character.
If the Court means that no First Amendment protected activity "ca[n] be viewed as
relevant ‘bad' character evidence in its own right," ante at
168, then today's decision represents a dramatic shift in our
sentencing jurisprudence.
B
Once the Court concludes that the
gang membership evidence "has no relevance to the issues being decided
in the [sentencing] proceeding," ante at 160, I also have
difficulty seeing what the First Amendment adds to the analysis. If
the Court considers the evidence irrelevant, the problem is not that
Delaware law bases the sentencing decision on impermissible issues,
but rather that Dawson may not have received a fair trial on the
permissible issues in the proceeding. The Due Process Clause, not the
First Amendment, traditionally has regulated questions about the
improper admission of evidence.
As we stated in Chambers v.
Florida, 309 U.S. 227 (1940), the requirement of Due Process
always has protected "the weak, or . . . helpless political, religious,
or racial minorities and those who differed" by ensuring that
no man's life, liberty or
property be forfeited as criminal punishment for violation of [the]
law until there ha[s] been a charge fairly made
[p179] and fairly tried in a public tribunal free of prejudice,
passion, excitement, and tyrannical power.
Id. at 236-237. We have
made clear, in particular, that, when a state court admits evidence
that is
so unduly prejudicial that it
renders the trial fundamentally unfair, the Due Process Clause of
the Fourteenth Amendment provides a mechanism for relief.
Payne v. Tennessee, 501 U.S.
at 825; see Darden v. Wainwright, 477 U.S. 168, 179-183 (1986).
Our decision in Schware v.
Board of Bar Examiners of N.M., 353 U.S. 232 (1957), which the
Court incorrectly cites, illustrates the point. In Schware, the
New Mexico Supreme Court denied an applicant admission to the bar on
grounds that he lacked good moral character. Evidence showed that the
applicant had belonged to the Communist Party 15 years earlier. The
Court erroneously states that Schware held that admitting proof
of the applicant's membership in the Communist Party violated the
First Amendment. Ante at 168. Schware, in fact, did not
decide that admitting the Communist Party evidence abridged any right
of free political association. See 353 U.S. at 243, n. 13. It
held, instead, that the state court erred in admitting the Communist
Party evidence, because it had no relevance to the applicant's moral
character after so many years. See id. at 246. Due process, the
Court concluded, prohibited the state court to find the applicant
morally unfit to practice law without any relevant evidence. See id.
at 247.
Applying familiar evidentiary
standards in Dawson's case, the trial judge recognized that the "real
issue" in admitting the gang membership evidence was whether its "probative
value is outweighed by the danger of unfair prejudice." App. 52. The
Delaware Supreme Court, likewise, examined the record to determine
whether the gang membership evidence "improperly appeal[ed] to the
juror's passions and prejudices concerning race, religion, or
political affiliation." 581 A.2d 1078, 1103 (1990). The standards
employed by these courts went further than the fundamental unfairness
[p180] standard stated in Payne,
and therefore satisfied the requirements of Due Process. Dawson has
presented no convincing argument, based on the record as a whole, that
the courts misapplied these standards to the facts of his case. For
these reasons, I would affirm.
*****
Centuries of human experience
have given testimony to the dynamic qualities of religion. Religion
may be a significant, decisive factor in enabling an individual to
overcome his difficulties.
Id. at 10. The report also suggests that
courts consider the defendant's "fraternal and social organizations."
Ibid. A more recent edition of this report retains comparable
instructions. See Administrative Office of the United States
Courts, The Presentence Investigation Report, Pub. No. 105 (1984).
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