Citation: 106 Harv. L. Rev

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2 1992] THE SUPREME COURT- LEADING CASES governments and orders them to take actions that only governments can take, voters will likely be uncertain whom they should hold accountable. 68 Therefore, an analysis of political accountability rooted in the Guarantee Clause provides what the New York Court failed to deliver: a principled and textually-grounded basis for distinguishing laws of general applicability from laws directed solely at state governments. C. Criminal Law and Procedure I. Defendants's Right to Strike Automatic Death Penalty Jurors. - During voir dire, a prosecutor seeking a death sentence would like to dismiss all potential jurors who unconditionally oppose the death penalty. Likewise, the defense would like to strike those jurors who would impose a death sentence in all capital cases (so-called automatic death penalty or "ADP" jurors). In the past two decades, the Supreme Court has built upon dictum in Witherspoon v. Illinois,! and granted prosecutors the right to inquire during voir dire whether potential jurors would always refuse to recommend a death sentence and to dismiss for cause those who answer affirmatively. 2 Last Term, in Morgan v. Illinois,3 the Court held that the defense has the same right to question and dismiss ADP jurors. In its well-reasoned decision, the Court correctly applied the long-standing constitutional principles of fairness and impartiality. El Rukn, a notoriously violent gang in Chicago's inner city, paid Derrick Morgan four thousand dollars to kill a competing drug dealer. 4 On the night of the crime, Morgan lured the victim into an abandoned apartment with the promise of a big drug deal. Once inside, Morgan shot the victim in the head six times. A jury convicted Morgan of first-degree murder and sentenced him to death. s lllinois law provides that a defendant convicted of a capital offense is eligible for the death penalty if the jury determines unanimously 6 and beyond a reasonable doubt 7 that the defendant was at least eighteen years old at the time of the crime, and that at least one of 68 See La Pierre, supra note 7, at ; supra p. r76. I 39I U.S. sxo (r968). In a decision that limited prosecutors' ability to remove for cause those jurors who "might hesitate" to impose a death penalty, the Witherspoon court noted that its holding did not prohibit the dismissal of those jurors who would never impose death. See id. at 5I3 (quoting People v. Carpenter, xso N.E.2d roo, ro3 (Ill. r958)). 2 See Lockhart v. McCree, 476 U.S. r62, r6s (r986); Wainwright v. Witt, 469 U.S. 4r2, 424 n.s (r985); Witherspoon, 39I U.S. at sx3. 3 II2 s. Ct (I992). 4 See id. at s See id. 6 See ILL. ANN. STAT. ch. 38, para. 9-r(g) (Smith-Hurd Supp. I992). 7 See id. para. 9-r(f).

3 HARVARD LAW REVIEW [Vol, I06:163 ten aggravating factors existed. 8 Thereafter, "[t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. "9 Mter such consideration, "if the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death. "10 In lllinois, the presiding judge, rather than the attorneys, conducts the voir dire. 11 The trial court in Morgan, upon request by the prosecutor and over the objection of defense counsel, asked each potential juror if he would refuse to impose the death penalty regardless of the facts. 1 2 The court dismissed for cause seventeen potential jurors who stated their inability to impose a death sentence because of moral objections.i3 During the questioning, defense counsel requested the trial court to ask each potential juror the so-called "reverse-witherspoon" question:14 "If you found Derrick Morgan guilty, would you automatically vote to impose the death penalty no matter what the facts are?" 1 5 The trial court refused, explaining that it had "asked the question in a different vein substantially in that nature" by asking the jurors generally about their ability to follow the law.t6 On appeal to the lllinois Supreme Court, Morgan argued that the United States Constitution requires voir dire to include the reverse Witherspoon question when requested by the defense. Finding that each juror "was selected from a fair cross section of the community, each juror swore to uphold the law regardless of his or her personal feelings, and no juror expressed any views that would call his or her impartiality into question," the court affirmed both Morgan's conviction and the death sentence.i7 In a 6-3 decision, the Supreme Court reversed. Writing for the majority,i8 Justice White noted that the Sixth Amendment does not s See id. para. 9-r(b). 9 Id. para. 9-I(c). IO!d. para. 9-r(g). Mitigating factors include but are not limited to the five enumerated by the statute. See id. para. 9-z(c). 11 See People v. Gacy, 468 N.E.2d II7I, n84-85 (Til. 1984), cert denied, 470 U.S (1985). 12 See Morgan, n2 S. Ct. at 2226.!3 See id. 14 See id. at The question also is known popularly as the "life qualifying" question, for its apparent effect on the composition of the jury. See id. at IS Id. at !d. For example, the trial court asked the following question: "Would you follow my instructions on the law, even though you may not agree?" I d. 17 People v. Morgan, 568 N.E.2d 755, 778 (Til. 1991). IS Justices Blackmun, Stevens, O'Connor, Kennedy, and Souter joined in the majority opinion.

4 1992] THE SUPREME COURT- LEADING CASES 185 require that only a jury may impose a death sentence. 1 9 However, once a state has elected to empanel a jury for the purpose of capital sentencing, the Fourteenth Amendment mandates that the jury meet minimum impartiality standards. 20 Building on dictum announced in Ross v. Oklahoma, 21 Justice White argued that an ADP juror has already made up his mind on the merits of the sentence and thus is not impartial. 22 By imposing death under all circumstances the juror abdicates his duty under the lllinois statute to consider evidence of mitigating factors and to render an impartial judgment based on that evidence. 23 Justice White next considered the appropriate scope of appellate review of voir dire. Although recognizing the trial court's historic discretion in conducting voir dire and the inherent difficulties of appellate review, Justice White argued that such discretion should not preclude a finding that voir dire was insufficient to ensure the impartiality of the jury and the fairness of the trial. 2 4 For support, Justice White relied on the reasoning of the Witherspoon line of cases, which granted the prosecution the right to question potential jurors during voir dire concerning their anti-death penalty inclinations. 25 Applying this reasoning to Morgan, Justice White argued that, without a right to question, "[the defendant's] right not to be tried by [ADP] jurors would be rendered as nugatory and meaningless as the State's right, in the absence of questioning, to strike those who would never [impose the death penalty]."26 The Court further held that general questions concerning the jurors' ability to follow the law inadequately protect against the possibility that an ADP juror might be empaneled. 27 Justice White noted that the prosecutor in Morgan requested that the death-qualifying question be asked. 28 By doing so, the prosecutor implicitly acknowledged that a juror might be empaneled who could not follow the law, despite his protestations to the contrary. Moreover, Justice White argued, an ADP juror may in all honesty answer that he could follow 19 See Morgan, II2 S. Ct. at 2228 (citing Spa2iano v. Florida, 468 U.S. 447, 464 (1984)). 2o See id. at U.S. 81 (1988). In Ross, the trial court did not dismiss an ADP juror for cause. However, because the defense used a peremptory challenge to remove the juror, the Court affirmed the conviction and sentence. In so doing the Court noted that "[h]ad [the ADP juror] sat on the jury that ultimately sentenced petitioner to death,... the sentence would have to be overturned." ld. at 85 (citing Adams v. Texas, 448 U.S. 38, 45 (1980)). 22 See Morgan, II2 S. Ct. at See id. at , See id. at See id. at I d. at See id. at See id. at 2232.

5 !86 HARVARD LAW REVIEW [Vol. 1o6:163 the law without knowing that his strong beliefs regarding the death penalty would prevent him from doing so. Agreement with a general, idealized principle does not preclude dogmatic opposition to a specific application of that principle. 2 9 The Court concluded that the possibility of such partiality can only be eliminated by a direct inquiry into each potential juror's specific views on the application of the death penalty. 3D Justice Scalia dissented. 31 He agreed with the majority that the Due Process Clause requires the sentencing jury to be impartial to the same extent required by the Sixth Amendment.3 2 However, Justice Scalia argued that the inclusion of ADP jurors does not always render a jury unconstitutionally biased. He proposed the following scenario: Suppose that the prosecutor attempts to establish a material element of a crime through three pieces of circumstantial evidence - x, y, and z. A juror states during voir dire that he will always convict if those three elements are shown. Justice Scalia argued that such a juror should not be dismissed for cause. He is perfectly capable of following the law because the law does not require him to convict or to acquit; he may weigh x, y, and z in any way that he pleases in reaching a decision. Similarly, Justice Scalia argued, the defense cannot dismiss for cause a juror who will always sentence a death-eligible defendant to die. The law does not require the juror to impose a lighter sentence, but instead merely permits him to do so. 33 According to Justice Scalia, Dlinois law provides that a death sentence be imposed if no "sufficient" mitigating factors exist that outweigh any aggravating factors. 34 Thus, the jury has discretion to determine which mitigating factors are ever sufficient, and an ADP juror does not exceed the bounds of his statutory duty when he decides that no mitigating factors are sufficient. An ADP juror does not fail to consider the evidence, "he simply fails to give it the effect the defendant desires. " 3 5 Furthermore, the Eighth Amendment does not require a jury to consider mitigating factors; it only requires that a state may not preclude the jury from doing so. 36 Even if the majority were correct that an ADP juror is biased and must be excused for cause, Justice Scalia denied that the defense should have the right to ask particular questions during voir dire. Emphasizing the trial courts' discretion in conducting voir dire, Justice 2 9 See id. at See id. 31 Chief Justice Rehnquist and Justice Thomas joined in Justice Scalia's dissent. 32 See id. at (Scalia, J., dissenting). 33 See id. at I d. 35 ld. at See id. at 2238.

6 1992] THE SUPREME COURT- LEADING CASES I87 Scalia argued that general questions concerning the jurors' ability to follow the law are sufficient to eliminate ADP jurors. 37 In response to the majority, Justice Scalia stated that the asymmetry that favor the prosecution's ability to ferret out pro-life jurors inheres in lllinois's capital sentencing scheme; jurors at the death-eligibility stage must consider aggravating factors, but only may consider mitigating circumstances. Thus, a juror who will never impose death by never finding an aggravating factor acts lawlessly, while a juror who does not consider mitigating factors acts within the bounds of the law. 38 The debate in Morgan concerns the very real possibility that a capital defendant's sentence may be determined by jurors who will always impose a penalty of death. For example, a 1987 study of eighteen capital trials in three states in which courts had previously granted reverse-witherspoon rights to defendants found that over twenty-five percent of the jurors dismissed for cause by the defense were ADPs. 3 9 For those wary of statistics, anecdotes abound. Consider, for example, the following exchange during voir dire for a capital case: Lawyer: Do you think, sir, that if the law so required, that you could follow all of the instructions, and actually impose a sentence of death? Juror: They do that stuff up in Huntsville, right? Lawyer (somewhat confused): What do you mean? Juror: Well, I suppose that if it were on a weekend, I could drive out there and do it. Yes I think I could.40 The Morgan decision gives the defense the ability to ferret out these ADP jurors, thus bringing much needed symmetry to the rules governing voir dire in capital cases. In a system in which evenhandedness is the norm, and deviations exist primarily to protect the defendant against judicial error or prosecutorial zeal, the defense 37 See id. at See id. at 224I. 39 See Michael T. Nietzel, Ronald C. Dillehay & Melissa J. Himelein, Effects of Voir Dire Variations in Capital Trials: A Replication and Extension, s BEHAVIORAL Sci. & L. 467, 473 (I987); see also Michael L. Neises & Ronald C. Dillehay, Death Qualification and Conviction Proneness: Witt and Witherspoon Compared, S BEHAVIORAL Sci. & L. 479, 485 (I987) (finding that 25% of randomly selected registered voters identified themselves as ADPs). But see James Luginbuhl & Kathi Middendorf, Death Penalty Beliefs and Jurors' Responses to Aggravating and Mitigating Circmnstances in Capital Trials, I2 LAw & HuM. BEHAV. 263, (I988) (finding that only I% of the surveyed population to qualify as ADPs); Joseph B. Kadane, After Hovey: A Note on Taking Account of the Automatic Death Penalty Jurors, 8 LAw & HuM. BEHAV. us, u6 (I984) (finding I% ADPs). In any event, any discemable risk is "unacceptable in light of the ease with which that risk could have been minimized." Turner v. Murray, 476 U.S. 28, 36 (I986) (plurality opinion). 40 Jeffrey Udell, Reflections on Independent Fieldwork Project I7-I8 (Feb. 3, I992) (unpublished manuscript on file at the Harvard Law School Library).

7 !88 HARVARD LAW REVIEW [Vol. 106:163 should be permitted to ensure impartiality in a case involving the most final and severe of penalties. The Court's decision thus confirms that the constitutional principles of fairness and impartiality apply equally across the board. All of the justices agreed that a sentencing jury "must stand impartial and indifferent to the extent commanded by the Sixth Amendment," even though that provision does not require that a jury be assembled for sentencing. 41 At the very least, this standard of impartiality requires that a juror must be "indifferent" 42 to the case and that the "verdict must be based upon the evidence developed at the trial. "43 A defining characteristic of such impartiality is the juror's ability to follow the law governing the case, and "a juror who has formed an opinion cannot be impartial. "44 Both opinions in Morgan neglected the fact that an ADP juror offends this expectation of impartiality because he is unable to follow the law that requires the consideration of aggravating evidence. lllinois law provides that a guilty murderer can be sentenced to death if, and only if, at least one of ten statutory aggravating factors exists. 45 Thus, a juror who decides ex ante that he will automatically condemn a guilty murderer to death will not consider the aggravating circumstances surrounding the crime. By definition, therefore, he is partial and should be struck for cause. More central to the debate in Morgan, an ADP juror is also partial because he fails to consider mitigating evidence. Within the context of the Morgan case, lllinois law plainly and explicitly states that "[t]he court shall consider, or shall instruct the jury to consider" 4 6 mitigating evidence. Justice Scalia, however, relied on the trial court's instructions to the jury to support his contention that lllinois law does not require, but merely permits, the jury to consider mitigating factors.47 But court instructions are not the final exposition of the law. lllinois law mandates that the court "shall instruct the jury to consider"48 mitigating evidence, and Justice Scalia's interpretation that a juror may decide whether or not to consider mitigating evidence is inconsistent with this requirement. 4 1 II2 S. Ct. at 2229; see id. at (Scalia, J., dissenting). 42 Morgan, II2 S. Ct. at Turner v. Louisiana, 379 U.S. 466, 472 (1965) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (r96r)). 44 Reynolds v. United States, 98 U.S. 145, 155 (1879). 4 5 See ILL. ANN. STAT. ch. 38, para. 9-1(b) (Smith-Hurd Supp. 1992). The U.S. Constitution may also mandate the consideration of aggravating factors. See Woodson v. North Carolina, 428 U.S. 280, (1976) (plurality opinion) (holding that the Eighth Amendment prohibits the automatic execution of guilty murderers without consideration of the individual circumstances of the offender and his crime). 46 ILL. ANN. STAT. ch. 38, para. 9-1(c). 47 Morgan, II2 S. Ct. at 2237 (Scalia, J., dissenting). 48 I d.

8 1992] THE SUPREME COURT- LEADING CASES 189 Morgan, of course, only considered how the Fourteenth Amendment applied to a court's implementation of the lllinois statute at issue, one that explicitly requires the consideration of aggravating and mitigation factors. More generally, however, the requirement that the jury consider aggravating and mitigating factors may also be constitutionally mandated. In Woodson v. North Carolina, 4 9 a plurality of the Court held that the Eighth Amendment requires the sentencer to consider the individual circumstances of the offender and his crime, and thus invalidated a mandatory death penalty statute that left the sentencer no discretion for leniency. 5o Two years later, in Lockett v. Ohio,5 1 another plurality held that Woodson's guarantee of individualized sentencing requires that the sentencer "not be precluded from considering, as a mitigating factor, [evidence] that the defendant proffers as a basis for a sentence less than death. "52 Justice Scalia argued that Lockett does not require that the sentencer consider mitigating evidence, but only that he not be precluded from doing so. 5 3 But the Lockett court's holding was so limited only because that language alone was sufficient to strike down the statute at issue. The Ohio statute in that case prevented the sentencer from considering mitigating evidence and was struck down for that reason. The principle animating Lockett was the fear that "the death penalty will be imposed in spite of factors which may call for a less severe penalty. "5 4 The Court's use of this principle to guide its decision means that the Eighth Amendment must mandate consideration of mitigating evidence. Moreover, the Lockett court emphasized that "[i]n discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider mitigating and aggravating circumstances involved in the crime. "55 Although Justice Scalia recently argtied in Walton v. Arizona56 that the Woodson-Lockett doctrine should be overturned,s7 the Court disagreed.s8 Thus, Justice Scalia's objection to the Woodson-Lockett doctrine, reiterated in his dissent in Morgan, "is a view long rejected by [the] Court."S U.S. 280 (1976) (plurality opinion). so See id. at Sl 438 u.s. s86 (1978) (plurality opinion). 5 2 I d. at 6o4; see also The Supreme Court- Leading Cases, r989 Tenn, 104 HARv. L. REv. 129, 139 (1990) (noting that Lockett requires the sentencer to consider mitigating factors). 53 See Morgan, II2 S.Ct. at 2238 (Scalia, J., dissenting). 54 Lockett, 438 U.S. at 6os. 55 Id. at 603 (quoting Williams v. Oklahoma, 3S8 U.S. S76, S8S (19s9)). 56 IIO s. Ct (1990). 57 See id. at (Scalia, J., concurring in part and concurring in the judgment). ss See Walton, IIO S. Ct. at JOSS (plurality opinion). The Court upheld the death sentence in Walton because it found that the statutory scheme in that case did not preclude the consideration of mitigating factors. 59 Morgan, II2 S. Ct. at 2234 (Scalia, J., dissenting).

9 190 HARVARD LAW REVIEW [Vol. xo6:x63 In Morgan, Justice Scalia argues that an ADP juror will indeed "consider" mitigating evidence, but will always reject such evidence as insufficient to outweigh the aggravating factors. 60 But to "consider" plainly means "to reflect on: think about with a degree of care or caution. "6 1 To consider mitigating evidence does not mean, contrary to Justice Scalia's assertion, to reject such evidence out of hand. An ADP juror by definition cannot consider mitigating factors because her views on the death penalty preclude her from according such factors the requisite care and reflection. Because both lllinois law and the Eighth Amendment require a juror to consider mitigating factors, her unwillingness to do so in all circumstances betrays her inability to follow the law. Contrary to Justice Scalia's opinion, mitigating factors are not circumstantial evidence that the juror can treat as he pleases. A significant difference exists between a juror who states that he will consider mitigating factors but will likely ascribe a very low value to them in deciding whether to impose the death penalty, and one who flatly states that he will never consider them under any circumstance. The former is open-minded and will discharge his duty according to the evidence presented; the latter comes to the judicial proceeding with unshakable convictions that prevent him from discharging his duties as a juror. In a capital case, the chance to present evidence to a receptive jury could be the difference between life and death. Moreover, even conceding Justice Scalia's arguments, no justification exists for granting prosecutors the right to ferret out pro-life jurors without providing the defense with a symmetrical right to strike ADP jurors. Justice Scalia argues that a pro-life juror is unconstitutionally partial because he is required to consider aggravating circumstances, as opposed to an ADP juror who is merely permitted to consider mitigating evidence. 62 But the law does not, indeed cannot, 63 require that a juror impose the death penalty; it merely permits her to do so. If an ADP juror follows the law by considering mitigating factors to have a weight of zero, then a pro-life juror must act equally within the bound of the law when he ascribes a weight of one hundred to mitigating factors. 64 He would "consider," in Justice Scalia's sense of the word, aggravating factors, but L'len decide that mitigating factors are always sufficient to outweigh aggravating ones See id. at WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 483 (1986). 62 See Morgan, rr2 S. Ct. at 2238 (Scalia, J., dissenting). 63 See Woodson v. North Carolina, 428 U.S 28o, (1976). 64 In other words, discretion to accord no weight to a particular factor necessarily includes the choice to accord conclusive weight to that factor. 65 The only case in which Justice Scalia's arguments would not apply to pro-life jurors is when no mitigating factors exist. In Morgan, however, this was not a possibility because Dlinois

10 1992] THE SUPREME COURT- LEADING CASES Practical questions of enforcement justify the Court's intrusion on the trial courts' traditional discretion in conducting voir dire. The presence of ADP jurors can only be detected by granting the defense the right to question potential jurors about their views on the death penalty. General questions concerning the juror's ability to follow the law do not suffice. 6 6 The art of discovering a person's true sentiments lies in the interrogator's ability to formulate direct questions targeted at specific subjects. General acquiescence to an ideal principle does not necessarily indicate understanding of or agreement with its constituent components. Justice Scalia responds to this argument by noting that a jury's confusion as to what the law requires in a specific instance could be resolved by clear instructions to the jury. 67 By that point, however, the question is moot. No matter how clear and specific the instructions are to the jury, an ADP juror will still always impose death, even if such a sentence offends the law and violates the instructions. The point is to discover such jurors at the voir dire stage. It is the clarity and specificity of the voir dire questions that matter, not the court's instructions to the jury. Justice Scalia, in his dissent, artfully accuses the majority of improvising its ruling from a "death is different" jurisprudence, one separate from and unsupported by traditional constitutional principles.68 However, it is Justice Scalia who seeks to depart from familiar constitutional principles of fairness and impartiality. One's convictions concerning the death penalty should not color one's vision of the judicial process employed to determine the propriety of death in a particular case. Justice Scalia's opinion betrays an uncharacteristic confiation of these two distinct inquiries. 2. Independence of the Grand Jury. - Where the grand jury belongs on the organizational map of the federal government - as either an independent institution or as an appendage of the court - is one of the fundamental tensions in grand jury law. 1 Last Term, in law permitted the jury to decide what evidence should be considered mitigating. The mitigating factors enumerated in the Dlinois statute were not exclusive. See supra note Io. 66 See Neises & Dillehay, supra note 39, at 493 (finding that 26 out of 32 ADP jurors stated that they "would not be substantially impaired or prevented from performing their juror duties despite having also stated that they would always vote for the death penalty for guilty capital defendants"). 67 See Morgan, n2 S. Ct. at 2240 (Scalia, J., dissenting). 68 See id. at I Cf PAUL S. DIAMOND, FEDERAL GRAND JURY PRACTICE AND PROCEDURE!.02 1 at II I2 (Supp. I99I) (characteri2ing the tension between judicial control of the grand j_ury and grand jury independence the basis of "modem grand jury practice"). Some courts and commentators have placed the grand jury in its own constitutional category, independent of all three branches. See, e.g., United States v. Pabian, 704 F.2d I533, I536 (nth Cir. I983); United States v. Chanen, 549 F.2d I3o6, I3I2 (9th Cir.), cert. denied, 434 U.S. 825 (I977); Nixon v. Sirica, 487 F.2d 700, 7I2 n.54 (D.C. Cir. I973); 2 SARA S. BEALE & WILLIAM C. BRYSON, GRAND JURY