OCTOBER TERM, 1992
Syllabus
ARAVE, WARDEN
v. CREECH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-1160. Argued November 10, 1992-Decided March 30,1993
After respondent Creech pleaded guilty to first-degree murder
for the brutal slaying of a fellow Idaho prison inmate, the state
trial judge sentenced him to death based, in part, on the statutory
aggravating circumstance that "[b]y the murder, or circumstances
surrounding its commission, the defendant exhibited utter disregard
for human life." In affirming, the Idaho Supreme Court, among other
things, rejected Creech's argument that this aggravating
circumstance is unconstitutionally vague and reaffirmed the
limiting construction it had placed on the statutory language in
State v.
Osborn, 102 Idaho 405, 418-419, 631 P.2d
187,200-201, whereby,
inter alia, '''the phrase "utter
disregard" ... is meant to be reflective of ... the cold-blooded,
pitiless slayer.''' Although the Federal District Court denied
habeas corpus relief, the Court of Appeals found the "utter
disregard" circumstance facially invalid, holding, among other
things, that the circumstance is unconstitutionally vague and that
the
Osborn narrowing construction is inadequate to cure the
defect under this Court's precedents.
Held:
1. In light of the consistent narrowing definition given the
"utter disregard" circumstance by the Idaho Supreme Court, the
circumstance, on its face, meets constitutional standards.
Pp.470-478.
(a) To satisfy the Eighth and Fourteenth Amendments, a capital
sentencing scheme must channel the sentencer's discretion by
"'clear and objective standards'" that provide specific and
detailed guidance and make rationally reviewable the death
sentencing process. See,
e. g.,
Lewis v.
Jeffers, 497
U. S. 764,774. In order to decide whether a particular
aggravating circumstance meets these requirements, a federal court
must determine whether the statutory language defining the
circumstance is itself too vague to guide the sentencer; if so,
whether the state courts have further defined the vague terms; and,
if so, whether those definitions are constitutionally sufficient,
i.
e., whether they provide
some guidance.
Walton v.
Arizona, 497 U. S. 639, 654.
However, it is not necessary to decide here whether the statutory
phrase "utter disregard for human life" itself passes
constitutional muster. The Idaho Supreme Court has adopted a
limiting construction, and that construction meets constitutional
requirements. Pp.470-471.
464
Syllabus
(b) The
Osborn construction is sufficiently "clear and
objective."
In ordinary usage, the phrase "cold-blooded, pitiless slayer"
refers to a killer who kills without feeling or sympathy. Thus, the
phrase describes the defendant's state of mind: not his
mens
rea, but his attitude toward his conduct and his victim. The
law has long recognized that such state of mind is not a
"subjective" matter, but a
fact to be inferred from the
surrounding circumstances. Although determining whether a capital
defendant killed without feeling or sympathy may be difficult, that
does not mean that a State cannot, consistent with the
Constitution, authorize sentencing judges to make the inquiry and
to take their findings into account when deciding whether capital
punishment is warranted. Cf.
Walton, supra, at 655. Pp.
471-474.
(c) Although the question is close, the
Osborn
construction satisfies the requirement that a State's capital
sentencing scheme "genuinely narrow the class of persons eligible
for the death penalty."
Zant v.
Stephens, 462 U. S. 862, 877. The
class of persons so eligible under Idaho law is defined broadly to
include all first-degree murderers, a category which is itself
broad because it includes a sizable number of seconddegree
murderers under specified circumstances. Even within these broad
definitions, the word "pitiless," standing alone, might not narrow
the class of death eligible defendants, since a sentencing judge
might conclude that every first-degree murderer is "pitiless."
Given the statutory scheme, however, a sentencing judge reasonably
could find that not all Idaho capital defendants are
"cold-blooded," since some within the broad class of first-degree
murderers
do exhibit feeling, for example, anger, jealousy,
or revenge. Pp.474-476.
(d) This Court rejects the suggestion of the parties and the
dissent that the facial constitutionality of the "utter disregard"
circumstance, as construed in
Osborn, should be determined
by examining for consistency the applications of the circumstance
by the state courts in other cases. Although the Court's facial
challenge precedents authorize a federal court to consider state
court
formulations of a limiting construction to ensure that
they are consistent, see,
e. g., Proffitt v.
Florida,
428 U. S. 242, 255, n. 12, those precedents have not authorized
review of state court cases to determine whether a limiting
construction has been
applied consistently. A comparative
analysis of state court cases, moreover, would be particularly
inappropriate here. None of the cases on which Creech or the
dissent relies influenced either his trial judge or the Idaho
Supreme Court, which upheld his death sentence before it had
applied
Osborn to any other set of facts, and thereafter has
repeatedly reaffirmed its
Osborn interpretation. Pp.
476-478.
2. The Court decides only the foregoing question. The Court of
Appeals had no occasion to reach the
Jeffers issue-whether
the state
465
courts' application of the "utter disregard" circumstance to the
facts of this case violated the Constitution. See 497 U. S., at
783. Because Creech is already entitled to resentencing in state
court on the basis of another of the Court of Appeals' rulings, the
posture of the case makes it unnecessary for this Court to reach
his remaining arguments. Pp. 478-479.
947 F.2d
873, reversed in part and remanded.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, SCALIA, KENNEDY, SOUTER, and THOMAS,
JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which
STEVENS, J., joined,
post, p. 479.
Lynn E. Thomas, Deputy Attorney General of Idaho, argued
the cause for petitioner. With her on the briefs was
Larry
EchoHawk, Attorney General.
Cliff Gardner argued the cause for respondent. With him
on the brief was
Claude M. Stern.
JUSTICE O'CONNOR delivered the opinion of the Court.
In 1981 Thomas Eugene Creech beat and kicked to death a fellow
inmate at the Idaho State Penitentiary. He pleaded guilty to
first-degree murder and was sentenced to death. The sentence was
based in part on the statutory aggravating circumstance that "[b]y
the murder, or circumstances surrounding its commission, the
defendant exhibited utter disregard for human life." Idaho Code §
19-2515(g)(6) (1987). The sole question we must decide is whether
the "utter disregard" circumstance, as interpreted by the Idaho
Supreme Court, adequately channels sentencing discretion as
required by the Eighth and Fourteenth Amendments.
I
The facts underlying this case could not be more chilling.
Thomas Creech has admitted to killing or participating in the
killing of at least 26 people. The bodies of 11 of his victims-who
were shot, stabbed, beaten, or strangled to death-have been
recovered in seven States. Creech has
466
said repeatedly that, unless he is completely isolated from
humanity, he likely will continue killing. And he has identified by
name three people outside prison walls he intends to kill if given
the opportunity.
Creech's most recent victim was David Dale Jensen, a fellow
inmate in the maximum security unit of the Idaho State
Penitentiary. When he killed Jensen, Creech was already serving
life sentences for other first-degree murders. Jensen, about seven
years Creech's junior, was a nonviolent car thief. He was also
physically handicapped. Part of Jensen's brain had been removed
prior to his incarceration, and he had a plastic plate in his
skull.
The circumstances surrounding Jensen's death remain unclear,
primarily because Creech has given conflicting accounts of them. In
one version, Creech killed Jensen in selfdefense. In another-the
version that Creech gave at his sentencing hearing-other inmates
offered to pay Creech or help him escape if he killed Jensen.
Creech, through an intermediary, provided Jensen with makeshift
weapons and then arranged for Jensen to attack him, in order to
create an excuse for the killing. Whichever of these accounts (if
either) is true, the Idaho Supreme Court found that the record
supported the following facts:
"Jensen approached Creech and swung a weapon at him which
consisted of a sock containing batteries. Creech took the weapon
away from Jensen, who returned to his cell but emerged with a
toothbrush to which had been taped a razor blade. When the two men
again met, Jensen made some movement toward Creech, who then struck
Jensen between the eyes with the battery laden sock, knocking
Jensen to the floor. The fight continued, according to Creech's
version, with Jensen swinging the razor blade at Creech and Creech
hitting Jensen with the battery filled sock. The plate imbedded in
Jensen's skull shattered, and blood from Jensen's skull was
splashed on the floor and walls. Finally, the sock broke
467
and the batteries fell out, and by that time Jensen was
helpless. Creech then commenced kicking Jensen about the throat and
head. Sometime later a guard noticed blood, and Jensen was taken to
the hospital, where he died the same day." State v.
Creech, 105 Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert.
denied, 465 U. S. 1051 (1984).
Creech pleaded guilty to first-degree murder. The trial judge
held a sentencing hearing in accordance with Idaho Code §
19-2515(d) (1987). After the hearing, the judge issued written
findings in the format prescribed by Rule 33.1 of the Idaho
Criminal Rules. Under the heading "Facts and Argument Found in
Mitigation," he listed that Creech "did not instigate the fight
with the victim, but the victim, without provocation, attacked him.
[Creech] was initially justified in protecting himself." App. 32.
Under the heading "Facts and Argumen[t] Found in Aggravation," the
judge stated:
"[T]he victim, once the attack commenced, was under the complete
domination and control of the defendant. The murder itself was
extremely gruesome evidencing an excessive violent rage. With the
victim's attack as an excuse, the ... murder then took on many of
the aspects of an assassination. These violent actions ... went
well beyond self-defense.
" ... The murder, once commenced, appears to have
been an intentional, calculated act." Id., at 32-33.
The judge then found beyond a reasonable doubt five statutory
aggravating circumstances, including that Creech, "[b]y the murder,
or circumstances surrounding its commission, ... exhibited utter
disregard for human life."
Id., at 34. He observed in this
context that "[a]fter the victim was helpless [Creech] killed him."
Ibid. Next, the judge concluded that the mitigating
circumstances did not outweigh the aggravat-
468
ing circumstances. Reiterating that Creech "intentionally
destroyed another human being at a time when he was completely
helpless," ibid., the judge sentenced Creech to death.
After temporarily remanding for the trial judge to impose
sentence in open court in Creech's presence, the Idaho Supreme
Court affirmed. The court rejected Creech's argument that the
"utter disregard" circumstance is unconstitutionally vague,
reaffirming the limiting construction it had placed on the
statutory language in
State v.
Osborn, 102 Idaho 405,
631 P. 2d 187 (1981):
" 'A ... limiting construction must be placed upon the
aggravating circumstances in 1. C. § 19-2515[g](6), that "[b]y the
murder, or the circumstances surrounding its commission, the
defendant exhibited utter disregard for human life." To properly
define this circumstance, it is important to note the other
aggravating circumstances with which this provision overlaps. The
second aggravating circumstance, 1. C. § 19-2515[g](2), that the
defendant committed another murder at the time this murder was
committed, obviously could show an utter disregard for human life,
as could the third aggravating circumstance, 1. C. § 19-2515[g](3),
that the defendant knowingly created a great risk of death to many
persons. The same can be said for the fourth aggravating
circumstance, 1. C. § 19-2515[g](4), that the murder was committed
for remuneration. Since we will not presume that the legislative
intent was to duplicate any already enumerated circumstance, thus
making [the "utter disregard" circumstance] mere surplusage, we
hold that the phrase "utter disregard" must be viewed in reference
to acts other than those set forth in 1. C. §§ 192515[g](2), (3),
and (4). We conclude instead that the phrase is meant to be
reflective of acts or circumstances surrounding the crime which
exhibit the highest, the utmost, callous disregard for human life,
i. e., the cold-blooded, pitiless slayer.'" Creech, supra,
at 370,
469
670 P. 2d, at 471 (quoting Osborn, supra, at 418-419, 631
P. 2d, at 200-201) (citation omitted).
After independently reviewing the record, the Idaho Supreme
Court also held that the evidence clearly supported the trial
judge's findings of aggravating and mitigating circumstances,
including the finding that Creech had exhibited "utter disregard
for human life." 105 Idaho, at 369, 670 P. 2d, at 470. Then, as
required by Idaho law, see Idaho Code § 19-2827(c)(3) (1987), the
court compared Creech's case to similar cases in order to determine
whether his sentence was excessive or disproportionate. The court
emphatically concluded that it was not: "We have examined cases
dating back more than 50 years and our examination fails to
disclose that any such remorseless, calculating, cold-blooded
multiple murderer has ... ever been before this Court." 105 Idaho,
at 375, 670 P. 2d, at 476 (footnote omitted).
Creech filed a petition for writ of habeas corpus in the United
States District Court for the District of Idaho. The District Court
denied relief. See
Creech v.
Arave, No. 86-1042 (June
18, 1986). The Court of Appeals for the Ninth Circuit, however,
agreed with Creech that the "utter disregard" circumstance is
unconstitutionally vague.
947 F.2d
873 (1991). The court first considered the statutory language
itself and concluded that the phrase "utter disregard" does not
adequately channel sentencing discretion.
Id., at 882-883.
The court then considered the
Osborn narrowing construction
and found it unsatisfactory as well. Explaining what "utter
disregard" does not mean, the Court of Appeals reasoned, does not
give the phrase content. 947 F. 2d, at 883, n. 12. Nor do the
words" 'the highest, the utmost, callous disregard for human life'"
clarify the statutory language; they merely emphasize it.
Id., at 883-884 (citing
Maynard v.
Cartwright,
486 U. S. 356,
364 (1988)). The phrase "cold-blooded, pitiless slayer" also was
deemed inadequate. The Court of Appeals construed our precedents,
including
Walton v.
Arizona, 497 U. S. 639 (1990),
to
470
require that a limiting construction "defin[e] the terms of the
statutory aggravating circumstance through objective standards."
947 F. 2d, at 884. "[C]old-blooded, pitiless slayer" fails, the
court said, because it calls for a "subjective determination."
Ibid. The court found further evidence of the
Osborn
construction's infirmity in its application to this case. In the
Court of Appeals' view, the trial judge's findings that Jensen
attacked Creech "without provocation" and that the murder"
'evidenc[ed] an excessive violent rage'" could not be reconciled
with the conclusion that Creech was a "coldblooded, pitiless"
killer. 947 F. 2d, at 884. The Court of Appeals therefore found the
"utter disregard" circumstance facially invalid.
Id., at
884-885.
Three judges dissented from an order denying rehearing en banco
The dissenters argued that the panel had misconstrued both the
"utter disregard" factor and this Court's prior decisions. Whether
a defendant is a "cold-blooded, pitiless slayer," they said, is not
a subjective inquiry; it is an evidentiary question to be
determined from facts and circumstances.
Id., at 890
(opinion of Trott, J.). The dissenters found the
Osborn
limiting construction indistinguishable from the construction this
Court approved in
Walton. 947 F. 2d, at 890. We granted
certiorari, limited to the narrow question whether the "utter
disregard" circumstance, as interpreted by the Idaho Supreme Court
in
Osborn, is unconstitutionally vague. See 504 U. S. 984
(1992).
II
This case is governed by the standards we articulated in
Walton, supra, and
Lewis v.
Jeffers, 497 U. S. 764 (1990). In
Jeffers we reaffirmed the fundamental principle that, to
satisfy the Eighth and Fourteenth Amendments, a capital sentencing
scheme must" 'suitably direc[t] and limi[t]' " the sentencer's
discretion "'so as to minimize the risk of wholly arbitrary and
capricious action.'"
Id., at 774 (quoting
Gregg v.
Georgia, 428
U. S. 153, 189 (1976) (joint opinion of Stewart,
471
Powell, and STEVENS, JJ.)). The State must" 'channel the
sentencer's discretion by clear and objective standards that
provide specific and detailed guidance, and that make rationally
reviewable the process for imposing a sentence of death.'" 497 U.
S., at 774 (quoting
Godfrey v.
Georgia, 446 U. S.
420, 428 (1980) (plurality opinion) (internal quotation marks
omitted)).
In
Walton we set forth the inquiry that a federal court
must undertake when asked to decide whether a particular
aggravating circumstance meets these standards:
"[The] federal court ... must first determine whether the
statutory language defining the circumstance is itself too vague to
provide any guidance to the sentencer. If so, then the federal
court must attempt to determine whether the state courts have
further defined the vague terms and, if they have done so, whether
those definitions are constitutionally sufficient, i. e.,
whether they provide some guidance to the sentencer." 497 U.
S., at 654 (emphasis in original).
Where, as in Idaho, the sentencer is a judge rather than a jury,
the federal court must presume that the judge knew and applied any
existing narrowing construction.
Id., at 653.
Unlike the Court of Appeals, we do not believe it is necessary
to decide whether the statutory phrase "utter disregard for human
life" itself passes constitutional muster. The Idaho Supreme Court
has adopted a limiting construction, and we believe that
construction meets constitutional requirements.
Contrary to the dissent's assertions, see
post, at
481-485, the phrase "cold-blooded, pitiless slayer" is not without
content. Webster's Dictionary defines "pitiless" to mean devoid of,
or unmoved by, mercy or compassion. Webster's Third New
International Dictionary 1726 (1986). The lead entry for
"cold-blooded" gives coordinate definitions. One,
472
"marked by absence of warm feelings: without consideration,
compunction, or clemency," id., at 442, mirrors the definition of
"pitiless." The other defines "cold-blooded" to mean "matter of
fact, emotionless."
Ibid. It is true that "coldblooded" is
sometimes also used to describe "premedita[tion]," Black's Law
Dictionary 260 (6th ed. 1990)-a mental state that may coincide
with, but is distinct from, a lack of feeling or compassion. But
premeditation is clearly not the sense in which the Idaho Supreme
Court used the word "cold-blooded" in
Osborn. Other terms in
the limiting construction-"callous" and "pitiless"-indicate that
the court used the word "cold-blooded" in its first sense.
"Premedita[tion]," moreover, is specifically addressed elsewhere in
the Idaho homicide statutes, Idaho Code § 184003(a) (1987) (amended
version at Supp. 1992); had the
Osborn court meant
premeditation, it likely would have used the statutory
language.
In ordinary usage, then, the phrase "cold-blooded, pitiless
slayer" refers to a killer who kills without feeling or sympathy.
We assume that legislators use words in their ordinary, everyday
senses, see,
e. g., INS v.
Phinpathya, 464 U. S. 183, 189
(1984), and there is no reason to suppose that judges do otherwise.
The dissent questions our resort to dictionaries for the common
meaning of the word "cold-blooded,"
post, at 482, but offers
no persuasive authority to suggest that the word, in its present
context, means anything else.
The Court of Appeals thought the
Osborn limiting
construction inadequate not because the phrase "cold-blooded,
pitiless slayer" lacks meaning, but because it requires the
sentencer to make a "subjective determination." We disagree. We are
not faced with pejorative adjectives such as "especially heinous,
atrocious, or cruel" or "outrageously or wantonly vile, horrible
and inhuman" -terms that describe a crime as a whole and that this
Court has held to be unconstitutionally vague. See,
e. g.,
Shell v.
Mississippi, 498 U. S. 1 (1990)
(per
curiam); Cartwright, 486 U. S., at 363-364;
God-
473
frey, supra, at 428-429. The terms "cold-blooded" and
"pitiless" describe the defendant's state of mind: not his
mens
rea, but his attitude toward his conduct and his victim. The
law has long recognized that a defendant's state of mind is not a
"subjective" matter, but a
fact to be inferred from the
surrounding circumstances. See
United States Postal Service Bd.
of Governors v.
Aikens, 460 U. S. 711, 716-717
(1983) (" 'The state of a man's mind is as much a fact as the state
of his digestion. It is true that it is very difficult to prove ...
, but if it can be ascertained it is as much a fact as anything
else'" (quoting
Edgington v.
Fitzmaurice, 29 Ch. Div.
459, 483 (1885))).
Determining whether a capital defendant killed without feeling
or sympathy is undoubtedly more difficult than, for example,
determining whether he "was previously convicted of another
murder," Idaho Code § 19-2515(g)(1) (1987). But that does not mean
that a State cannot, consistent with the Federal Constitution,
authorize sentencing judges to make the inquiry and to take their
findings into account when deciding whether capital punishment is
warranted. This is the import of
Walton. In that case we
considered Arizona's "especially heinous, cruel, or depraved"
circumstance. The Arizona Supreme Court had held that a crime is
committed in a "depraved" manner when the perpetrator "'relishes
the murder, evidencing debasement or perversion,' or 'shows an
indifference to the suffering of the victim and evidences a sense
of pleasure' in the killing."
Walton, supra, at 655 (quoting
State v.
Walton, 159 Ariz. 571, 587, 769 P. 2d 1017,
1033 (1989)). We concluded that this construction adequately guided
sentencing discretion, even though "the proper degree of definition
of an aggravating factor of this nature is not susceptible of
mathematical precision." 497 U. S., at 655; accord,
Jeffers,
497 U. S., at 777; cf.
Proffitt v.
Florida, 428 U. S. 242, 260 (1976)
(WHITE, J., concurring in judgment) (approving Florida statutory
aggravating circumstances that, "although ... not susceptible of
mechanical ap-
474
plication ... are by no means so vague and overbroad as to leave
the discretion of the sentencing authority unfettered").
The language at issue here is no less "clear and objective" than
the language sustained in
Walton. Whether a defendant
"relishes" or derives "pleasure" from his crime arguably may be
easier to determine than whether he acts without feeling or
sympathy, since enjoyment is an affirmative mental state, whereas
the cold-bloodedness inquiry in a sense requires the sentencer to
find a negative. But we do not think so subtle a distinction has
constitutional significance. The
Osborn limiting
construction, like the one upheld in
Walton, defines a state
of mind that is ascertainable from surrounding facts. Accordingly,
we decline to invalidate the "utter disregard" circumstance on the
ground that the Idaho Supreme Court's limiting construction is
insufficiently "objective."
Of course, it is not enough for an aggravating circumstance, as
construed by the state courts, to be determinate. Our precedents
make clear that a State's capital sentencing scheme also must
"genuinely narrow the class of persons eligible for the death
penalty."
Zant v.
Stephens, 462 U. S. 862, 877
(1983). When the purpose of a statutory aggravating circumstance is
to enable the sentencer to distinguish those who deserve capital
punishment from those who do not, the circumstance must provide a
principled basis for doing so. See
Jeffers, supra, at 776;
Godfrey, 446 U. S., at 433. If the sentencer fairly could
conclude that an aggravating circumstance applies to
every
defendant eligible for the death penalty, the circumstance is
constitutionally infirm. See
Cartwright, supra, at 364
(invalidating aggravating circumstance that "an ordinary person
could honestly believe" described every murder);
Godfrey,
supra, at 428-429 ("A person of ordinary sensibility could
fairly characterize almost every murder as 'outrageously or
wantonly vile, horrible and inhuman' ").
475
Although the question is close, we believe the
Osborn
construction satisfies this narrowing requirement. The class of
murderers eligible for capital punishment under Idaho law is
defined broadly to include all first-degree murderers. Idaho Code §
18-4004 (1987). And the category of first-degree murderers is also
broad. It includes premeditated murders and those carried out by
means of poison, lying in wait, or certain kinds of torture. §
18-4003(a). In addition, murders that otherwise would be classified
as second degree, § 18-4003(g)-including homicides committed
without "considerable provocation" or under circumstances
demonstrating "an abandoned and malignant heart" (a term of art
that refers to unintentional homicide committed with extreme
recklessness, see American Law Institute, Model Penal Code §
210.2(1)(b) Comment, n. 4 (1980)), Idaho Code §§ 18-4001, 18-4002
(1987)-become first degree if they are accompanied by one of a
number of enumerated circumstances. For example, murders are
classified as first degree when the victim is a fellow prison
inmate, § 18-4003(e), or a law enforcement or judicial officer
performing official duties, § 18-4003(b); when the defendant is
already serving a sentence for murder, § 18-4003(c); and when the
murder occurs during a prison escape, § 18-4003(f), or the
commission or attempted commission of arson, rape, robbery,
burglary, kidnaping, or mayhem, § 18-4003(d). In other words, a
sizable class of even those murderers who kill with some
provocation or without specific intent may receive the death
penalty under Idaho law.
We acknowledge that, even within these broad categories, the
word "pitiless," standing alone, might not narrow the class of
defendants eligible for the death penalty. A sentencing judge might
conclude that every first-degree murderer is "pitiless," because it
is difficult to imagine how a person with any mercy or compassion
could kill another human being without justification. Given the
statutory scheme, however, we believe that a sentencing judge
reason-
476
ably could find that not all Idaho capital defendants are
"coldblooded." That is because some within the broad class of
first-degree murderers
do exhibit feeling. Some, for
example, kill with anger, jealousy, revenge, or a variety of other
emotions. In
Walton we held that Arizona could treat capital
defendants who take pleasure in killing as more deserving of the
death penalty than those who do not. Idaho similarly has identified
the subclass of defendants who kill without feeling or sympathy as
more deserving of death. By doing so, it has narrowed in a
meaningful way the category of defendants upon whom capital
punishment may be imposed.
Creech argues that the Idaho courts have not applied the "utter
disregard" circumstance consistently. He points out that the courts
have found defendants to exhibit "utter disregard" in a wide range
of cases. This, he claims, demonstrates that the circumstance is
nothing more than a catchall. The dissent apparently agrees. See
post, at 485-487. The State, in turn, offers its own review
of the cases and contends that they are consistent. In essence, the
parties and the dissent would have us determine the facial
constitutionality of the "utter disregard" circumstance, as
construed in
Osborn, by examining applications of the
circumstance in cases not before us.
As an initial matter, we do not think the fact that "[a]ll kinds
of ... factors,"
post, at 486, may demonstrate the requisite
state of mind renders the
Osborn construction facially
invalid. That the Idaho courts may find first-degree murderers to
be "cold-blooded" and "pitiless" in a wide range of circumstances
is unsurprising. It also is irrelevant to the question before us.
We did not undertake a comparative analysis of state court
decisions in
Walton. See 497 U. S., at 655 (construing the
argument that the aggravating circumstance "has been applied in an
arbitrary manner" as a challenge to the state court's
proportionality review). And in
Jeffers we stated clearly
that the question whether state
477
courts properly have applied an aggravating circumstance is
separate from the question whether the circumstance, as narrowed,
is facially valid. See 497 U. S., at 778-780. To be sure, we
previously have examined other state decisions when the
construction of an aggravating circumstance has been
unclear. In
Sochor v.
Florida, 504 U. S. 527 (1992), for
example, the argument was that the state courts had not adhered to
a single limiting construction of Florida's "heinous, atrocious, or
cruel" circumstance.
Id., at 536-537; see also
Proffitt v.
Florida, 428 U. S., at 255, n. 12 (joint
opinion of Stewart, Powell, and STEVENS, JJ.) (reviewing other
cases to establish that the state courts had construed an
aggravating circumstance consistently). Under our precedents, a
federal court may consider state court
formulations of a
limiting construction to ensure that they are consistent. But our
decisions do not authorize review of state court cases to determine
whether a limiting construction has been ap
plied
consistently.
A comparative analysis of state court cases, moreover, would be
particularly inappropriate here. The Idaho Supreme Court upheld
Creech's death sentence in 1983-before it had applied
Osborn
to any other set of facts. None of the decisions on which the
dissent relies, or upon which Creech asks us to invalidate his
death sentence, influenced either the trial judge who sentenced
Creech or the appellate judges who upheld the sentence. And there
is no question that Idaho's formulation of its limiting
construction has been consistent. The Idaho Supreme Court has
reaffirmed its original interpretation of "utter disregard"
repeatedly, often reciting the definition given in
Osborn
verbatim. See,
e. g., State v.
Card, 121 Idaho 425,
435-436, 825 P. 2d 1081, 1091-1092 (1991) (citing cases), cert.
denied, 506 U. S. 915 (1992). It also has explained that "utter
disregard" differs from Idaho's "heinous, atrocious or cruel"
aggravating circumstance, Idaho Code § 19-2515(g)(5) (1987),
because the
Osborn construction focuses on the defendant's
state of mind.
State v.
478
Fain, 116 Idaho 82, 99, 774 P. 2d 252, 269 ("[T]he 'utter
disregard' factor refers not to the outrageousness of the acts
constituting the murder, but to the defendant's lack of
conscientious scruples against killing another human being"), cert.
denied, 493 U. S. 917 (1989). In light of the consistent narrowing
definition given the "utter disregard" circumstance by the Idaho
Supreme Court, we are satisfied that the circumstance, on its face,
meets constitutional standards.
III
Creech argues alternatively that the "utter disregard"
circumstance, even if facially valid, does not apply to him. He
suggests-as did the Court of Appeals and as does the dissent,
post, at 488-that the trial judge's findings that he was
provoked and that he exhibited an "excessive violent rage" are
irreconcilable with a finding of "utter disregard." The Idaho
Supreme Court, Creech claims, did not cure the error on appeal.
There also appears to be some question whether the other murders
that Creech has committed, and the selfdefense explanations he has
offered for some of them, bear on the "utter disregard"
determination. See Tr. of Oral Arg. 5-7, 18-21; cf.
post, at
488, n. 15.
These are primarily questions of state law. As we said in
Jeffers, a state court's application of a valid aggravating
circumstance violates the Constitution only if "no reasonable
sentencer" could find the circumstance to exist. 497 U. S., at 783.
The Court of Appeals had no occasion to decide the
Jeffers
issue in this case, since it found the "utter disregard"
circumstance facially vague. The posture of the case, moreover,
makes it unnecessary for us to reach the remaining arguments. The
Court of Appeals granted Creech relief on two other claims: that
the trial judge improperly refused to allow him to present new
mitigating evidence when he was resentenced in open court, and that
the judge applied two aggravating circumstances without making a
finding required under state law. See 947 F. 2d, at 881-882. On
the
479
basis of the first claim, Creech is entitled to resentencing in
state trial court.
Id., at 882. Accordingly, we hold today
only that the "utter disregard" circumstance, as defined in
Osborn, on its face meets constitutional requirements. The
judgment of the Court of Appeals is therefore reversed in part, and
the case is remanded for proceedings consistent with this
opinion.
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins,
dissenting.
Confronted with an insupportable limiting construction of an
unconstitutionally vague statute, the majority in turn concocts its
own limiting construction of the state court's formulation.
Like "nonsense upon stilts," 1 however, the majority's
reconstruction only highlights the deficient character of the
nebulous formulation that it seeks to advance. Because the metaphor
"cold-blooded" by which Idaho defines its "utter disregard"
circumstance is both vague and unenlightening, and because the
majority's recasting of that metaphor is not dictated by common
usage, legal usage, or the usage of the Idaho courts, the statute
fails to provide meaningful guidance to the sentencer as required
by the Constitution. Accordingly, I dissent.
I
I discuss the applicable legal standards only briefly, because,
for the most part, I agree with the majority about what is required
in a case of this kind. As the majority acknowledges,
ante,
at 474, "an aggravating circumstance must genuinely narrow the
class of persons eligible for the death penalty and must reasonably
justify the imposition of a more severe sentence on the defendant
compared to others found guilty of murder."
Zant v.
Stephens, 462
U. S. 862,
IJ. Bentham, Anarchical Fallacies, in 2 Works of Jeremy Bentham
501 (1843).
480
877 (1983). A state court's limiting construction can save a
flawed statute from unconstitutional vagueness, and where the
sentencer is a judge there is nothing wrong with "presum[ing] that
the judge knew and applied any existing narrowing construction."
Ante, at 471. "The trial judge's familiarity with the State
Supreme Court's opinions, however, will serve to narrow his
discretion only if that body of case law articulates a construction
of the aggravating circumstance that is coherent and consistent,
and that meaningfully limits the range of homicides to which the
aggravating factor will apply."
Walton v.
Arizona,
497 U. S. 639,
692 (1990) (dissenting opinion). We have "plainly rejected the
submission that a particular set of facts surrounding a murder,
however shocking they might be, were enough in themselves, and
without some narrowing principle to apply to those facts, to
warrant the imposition of the death penalty."
Maynard v.
Cartwright, 486 U. S. 356, 363
(1988). A limiting construction must do more than merely invite the
sentencer to assess in some indeterminate way the circumstances of
each case.
Clemons v.
Mississippi, 494 U. S. 738, 757-761
(1990) (opinion concurring in part and dissenting in part). The
source of this requirement is the paramount need to " 'make
rationally reviewable the process for imposing a sentence of
death.'"
Godfrey v.
Georgia, 446 U. S. 420, 428 (1980)
(pluralityopinion), quoting
Woodson v.
North
Carolina, 428 U.
S. 280, 303 (1976) (plurality opinion).
II
The Idaho Supreme Court has determined that under our cases
Idaho's statutory phrase, "utter disregard for human life,"
requires a limiting construction, see
State v.
Osborn, 102 Idaho 405, 418, 631 P. 2d 187, 200 (1981);
Sivak v.
State, 112 Idaho 197, 209, 731 P. 2d 192,
204 (1986), and petitioner does not challenge the Court of Appeals'
conclusion that the phrase, unadorned, fails to meet constitutional
standards. This is understandable. Every first-degree murder will
demonstrate a lack of regard for human life, and there is no
481
cause to believe that some murders somehow demonstrate only
partial, rather than "utter" disregard. Nor is there any evidence
that the phrase is intended to have a specialized meaning-other
than that presented by the Idaho Supreme Court in its limiting
constructions-that might successfully narrow the eligible class.
The question is whether
Osborn's limiting construction saves
the statute.2
Under
Osborn, an offense demonstrates "utter disregard
for human life" when the "acts or circumstances surrounding the
crime ... exhibit the highest, the utmost, callous disregard for
human life, i. e., the cold-blooded, pitiless slayer." 102 Idaho,
at 419, 631 P. 2d, at 201. Jettisoning all but the term,
"cold-blooded," the majority contends that this cumbersome
construction clearly singles out the killing committed "without
feeling or sympathy."
Ante, at 476. As an initial matter, I
fail to see how "without feeling or sympathy" is meaningfully
different from "devoid of ... mercy or compassion"-the definition
of "pitiless" that the majority concedes to be constitutionally
inadequate. See
ante, at 471.
Even if there is a distinction, however, the "without feeling or
sympathy" test, which never has been articulated by any Idaho
court, does not flow ineluctably from the phrase at issue in this
case: "cold-blooded." I must stress in this regard the rather
obvious point that a "facial" challenge of this nature-one alleging
that a limiting construction provides inadequate guidance-cannot be
defeated merely by a dem-
2 Of course, even if the phrase "utter disregard" were narrowing
and clear, a purported limiting construction from the State's high
court that actually undid any narrowing or clarity would render the
statute unconstitutional. For example, if the statute allowed the
death sentence where the murder was committed for pay, but an
authoritative construction from the State Supreme Court told trial
courts that the statute covered every murder committed for "bad
reasons," the state scheme would be unconstitutional. In the
present case, any clarity that may be imparted, and any channeling
that may be done by the phrase, "utter disregard for human life,"
is destroyed by the boundless and vague
Osborn construction
adopted as the authoritative interpretation of the statute.
482
onstration that there exists a narrowing way to apply the
contested language. The entire point of the challenge is that the
language's susceptibility to a
variety of interpretations is
what makes it (facially) unconstitutional. To save the statute, the
State must provide a construction that, on its face, reasonably can
be expected to be applied in a consistent and meaningful way so as
to provide the sentencer with adequate guidance. The metaphor
"cold-blooded" does not do this.
I begin with "ordinary usage." The majority points out that the
first definition in Webster's Dictionary under the entry
"cold-blooded" is "'marked by absence of warm feelings: without
consideration, compunction, or clemency.'"
Ante, at 472,
quoting Webster's Third New International Dictionary 442 (1986). If
Webster's' rendition of the term's ordinary meaning is to be
credited, then Idaho has singled out murderers who act without warm
feelings: those who act without consideration, compunction, or
clemency. Obviously that definition is no more illuminating than
the adjective "pitiless" as defined by the majority. What murderer
does act with consideration or compunction or clemency?
3
In its eagerness to boil the phrase down to a serviceable core,
the majority virtually ignores the very definition it cites.
Instead, the majority comes up with a hybrid all its own-"without
feeling or sympathy"-and then goes one step further, asserting that
because the term "cold-blooded" so obviously means "without
feeling," it cannot refer as ordinarily understood to murderers who
"kill with anger, jealousy, revenge, or a variety of other
emotions."
Ante, at 476. That is incorrect. In everyday
parlance, the term "coldblooded"
routinely is used to
describe killings that fall outside the majority's definition. In
the first nine weeks of this
3Cf.
State v.
Charboneau, 116 Idaho 129, 172, 774
P. 2d 299,342 (1989) (Bistline, J., dissenting) ("What first degree
murderer fails to show 'callous disregard for human life'? I
suppose this would be the 'pitiful' slayer, who, prior to
delivering the fatal blow, tells the victim, 'Excuse me, pardon me,
I know it's inconvenient, but I must now take your life' ").
483
year alone, the label "cold-blooded" has been applied to a
murder by an ex-spouse angry over visitation rights,4 a killing by
a jealous lover,5 a revenge killing,6 an ex-spouse "full of
hatred," 7 the close-range assassination of an enemy official by a
foe in a bitter ethnic conflict,S a murder prompted by humiliation
and hatred,9 killings by fanatical cult members,lO a murderer who
enjoyed killing,l1 and, perhaps most appro-
4 See Kuczka, Self-Defense Claimed in Murder Trial, Chicago
Tribune, Feb. 3, 1993, p. 5 ("To prosecutors, Eric Moen is a
cold-blooded killer who gunned down his wife's former boyfriend in
a Streamwood restaurant parking [lot] during a quarrel over
visitation rights to the ex-boyfriend's infant daughter").
5 See Caba, Friedman Prosecutor Rebuffed, Philadelphia Inquirer,
Feb. 19, 1993, p. B3 ("The prosecution contends she killed Edwards
in cold blood because he was leaving [her] to return to his wife in
Texas").
6 See McMahon, Dad Does Everything Right, But Son Goes Wrong,
Chicago Tribune, Mar. 7, 1993, p. 1 (youth who, according to
charges, killed victim after saying "he was going to kill him in
retaliation for something [the victim] had done" is, "the state
reminds, a cold-blooded killer").
7See Gorman, Millionaire Guilty of Killing Ex-Wife, Chicago
Tribune, Feb. 3, 1993, p. 1 ("Assistant State's Atty. Robert Egan
portrayed Davis as a 'manipulative,' cold-blooded killer .... Egan
depicted Davis as a man so filled with hatred that he killed Diane
Davis two weeks after an Illinois Appellate Court had ruled ...
that he must turn over $1.4 million of his inherited money to his
former spouse").
8See Burns, U. N. to Ask NATO to Airdrop Supplies for Bosnians,
N. Y.
Times, Jan. 12, 1993, p. A10 (shooting of Bosnian Deputy Prime
Minister by Serbian soldier was described by State Department
spokesman Richard A. Boucher as "cold-blooded" murder).
9 See Man Gets Life For Double Murder, Toronto Star, Mar. 4,
1993, p. A12 (the prosecution "called it 'a cold-blooded killing'
spurred by [the defendant's] 'humiliation and hate of these
people,' with whom he had squabbled during the 1991 mayoralty
campaign").
10 See McKay, Koresh "Smiled Defiantly" Before Ambush, Agent
Says, Houston Chronicle, Mar. 5, 1993, p. Al (" 'These people
aren't religious. These people are cold-blooded killers who were
shooting at us from every window in that place' ").
11 See Milling, Man Charged in 2 Slayings, Crime Spree, Houston
Chronicle, Mar. 5, 1993, p. A23 (" 'I'd describe him as a
psychopath who gets his gratification by hurting other people,'
Carroll said. 'He's not your typical serial killer. He just likes
to pull the trigger and watch people die.' ... 'We knew this guy
was a cold-blooded killer,' Carroll said").
484
priately, all murders.12 All these killings occurred with
"feelings" of one kind or another. All were described as
cold-blooded. The majority's assertion that the Idaho construction
narrows the class of capital defendants because it rules out those
who "kill with anger, jealousy, revenge, or a variety of other
emotions" clearly is erroneous, because in ordinary usage the
nebulous description "cold-blooded" simply is not limited to
defendants who kill without emotion.
In legal usage, the metaphor "cold blood" does have a specific
meaning. "Cold blood" is used "to designate a willful, deliberate,
and premeditated homicide." Black's Law Dictionary 260 (6th ed.
1990). As such, the term is used to differentiate between first-
and second-degree murders.13 For example, in
United States
v.
Frady, 456
U. S. 152 (1982), Jus-
12 See Longenecker, Penalizing Convicts, Chicago Tribune, Mar.
4, 1993, p. 28 (letter) ("[L]egislation to expand the death penalty
to include all convicted murderers is long needed .... [I]f an
individual commits coldblooded murder he should be removed from our
society").
13 The line between the "ordinary" and the "legal" meaning of
coldblooded, however, is not always obvious. On the one hand,
judges sometimes casually use the phrase in a variety of senses. In
those circumstances, contrary to the majority's assumptions, the
term regularly is applied to crimes committed "with anger,
jealousy, revenge, or a variety of other emotions." See,
e. g.,
McWilliams v.
Estelle, 378 F. Supp. 1380, 1383 (SD Tex.
1974) ("It was the theory of the prosecution that the store owner
refused to serve petitioner, that he became angry, went to his
hotel room, returned with a pistol, and shot the owner in cold
blood"), appeal dism'd,
507 F.2d
1278 (CA5 1975);
People v.
Sullivan, 183
Ill. App. 3d 175, 180, 538 N. E. 2d 1376, 1380 (1989) (the
defendant "exhibited repeatedly a very jealous, violent nature ....
The trial court concluded that if the situation were to arise
again, defendant in all probability would kill in cold blood
again");
People v.
Yates, 65 Ill. App. 3d 319, 325,
382 N. E. 2d 505, 510 (1978) ("This record reveals a concerted,
deliberate attack by Shirley and Emma Yates against their victim,
motivated ... by cold-blooded revenge"). On the other hand, in
ordinary parlance the term "cold-blooded" sometimes is used to mean
"premeditated." See,
e. g., Reward Offered in Slaying of 2
Women in Shadow Park, Los Angeles Times, Jan. 21, 1993, p. J2
(quoting mayor's statement: "'This was one of those in-cold-blood
killings, not just a drive-by or random shooting. It was
premeditated' ").
485
TICE O'CONNOR, writing for the Court, described the District of
Columbia's homicide statute: "'In homespun terminology, intentional
murder is in the first degree if committed in cold blood, and is
murder in the second degree if committed on impulse or in the
sudden heat of passion.'"
Id., at 170, n. 18, quoting
Austin v.
United States, 127 U. S. App. D. C. 180,
188,
382 F.2d
129, 137 (1967). Murder in cold blood is, in this sense, the
opposite of murder in "hot blood." Arguably, then, the
Osborn formulation covers every intentional or first-degree
murder. An aggravating circumstance so construed would clearly be
unconstitutional under
Godfrey.
Finally, I examine the construction's application by the Idaho
courts. The majority acknowledges the appropriateness of examining
"other state decisions when the
construction of an
aggravating circumstance has been unclear," such as where state
courts have not adhered to a single limiting construction.
Ante, at 477. Here, however, the majority believes such an
inquiry is "irrelevant,"
ante, at 476, because "there is no
question that Idaho's formulation of its limiting construction has
been consistent,"
ante, at 477. The majority misses the
point. Idaho's application of the
Osborn formulation is
relevant not because that formulation has been inconsistently
invoked, but because the construction has never meant what the
majority says it does. In other words, it is the majority's
reconstruction of the (unconstitutional) construction that has not
been applied consistently (or ever, for that matter). If, for
example, a State declared that "jaberwocky" was an aggravating
circumstance, and then carefully invoked "jaberwocky" in every one
of its capital cases, this Court could not simply decide that
"jaberwocky" means "killing a police officer" and then dispense
with any inquiry into whether the term ever had been understood in
that way by the State's courts, simply because the "jaberwocky"
construction consistently had been reaffirmed.
An examination of the Idaho cases reveals that the
Osborn
formulation is not much better than "jaberwocky." As
486
noted above, the Idaho courts never have articulated anything
remotely approaching the majority's novel "those who kill without
feeling or sympathy" interpretation. All kinds of other factors,
however, have been invoked by Idaho courts applying the
circumstance. For example, in
State v.
Aragon, 107
Idaho 358, 690 P. 2d 293 (1984), the killer's coldbloodedness
supposedly was demonstrated by his refusal to render aid to his
victim and the fact that "[h]is only concern was to cover up his
own participation in the incident."
Id., at 367,690 P. 2d,
at 302. In
State v.
Pizzuto, 119 Idaho 742, 774, 810
P. 2d 680, 712 (1991), a finding of "utter disregard" was held to
be supported by evidence that the defendant "approached Mr. Herndon
with a gun, then made him drop his pants and crawl into the cabin
where he proceeded to bludgeon the skulls of both of his victims
with a hammer. He then left them lying on the floor to die and Mr.
Herndon was left lying on the floor of the cabin convulsing." And,
in the present case, the trial judge's determination that Creech
exhibited utter disregard for human life appears to have been based
primarily on the fact that Creech had "intentionally destroyed
another human being at a time when he was completely helpless."
App. 34. Each of these characteristics is frightfully deplorable,
but what they have to do with a lack of emotion-or with each other,
for that mattereludes me. Without some rationalizing principle to
connect them, the findings of "cold-bloodedness" stand as nothing
more than fact-specific, "gut-reaction" conclusions that are
unconstitutional under
Maynard v.
Cartwright,
486 U. S. 356
(1988).
The futility of the Idaho courts' attempt to bring some
rationality to the "utter disregard" circumstance is glaringly
evident in the sole
post-Osborn case that endeavors to
explain the construction in any depth. In
State v.
Fain,
116 Idaho 82, 774 P. 2d 252, cert. denied, 493 U. S. 917
(1989), the court declared that the "utter disregard" factor refers
to "the defendant's lack of conscientious scruples against
killing
487
another human being."
Id., at 99, 744 P. 2d, at 269.
Accord,
State v.
Card, 121 Idaho 425, 436, 825 P. 2d
1081, 1092 (1991). Thus, the latest statement from the Idaho
Supreme Court on the issue says nothing about emotionless crimes,
but, instead, sweepingly includes every murder committed that is
without "'conscientious scruples against killing.''' I can imagine
no crime that would not fall within that construction.
Petitioner in his brief embraces
Fain's broad
construction.
"In every case in which the Idaho Supreme Court has upheld a
death sentence based wholly or in part on a finding of utter
disregard for human life, the defendant had acted without
conscientious scruple against killing." Brief for Petitioner 25.
Petitioner cites this reassuring fact as the "best evidence that
Idaho's utter disregard factor is not so broad that it operates
simply as a catch-all for murders not covered by other aggravating
circumstances."
Id., at 24. This "best evidence" is not very
good evidence, especially when viewed against the fact that the
Idaho Supreme Court never has reversed a finding of utter
disregard. 14 Equally unsettling is petitioner's frank admission
that the
Osborn construction "does not make findings of the
aggravating factors depend on the presence of particular facts.
Instead Idaho has chosen to rely on the ability of the sentencing
judge to make principled distinctions between capital and
non-capital cases
14 The State suggests in its brief that on one occasion the
Idaho Supreme Court found that the evidence did not support an
utter disregard finding. Brieffor Petitioner 27, citing
State v.
Charboneau, 116 Idaho 129, 774 P. 2d 299
(1989). It is not at all clear, however, that that is what occurred
in
Charboneau. The court there vacated a sentence because it
was "unclear from the [trial court's] Findings whether the trial
court would have imposed the death penalty without having
[mistakenly] concluded that [the victim] was not mortally wounded
until the second volley of shots was fired."
Id., at 151,
774 P. 2d, at 321. There is no mention in this part of the opinion
of the "utter disregard" factor, nor any suggestion that the
erroneous finding tainted the "utter disregard" factor rather than
the "heinous, atrocious, and cruel" circumstance that was at issue
in that case.
488
with guidance that is somewhat subjective .... " Brief for
Petitioner 9. That kind of gestalt approach to capital sentencing
is precisely what
Cartwright and
Godfrey forbid.
Ultimately, it hardly seems necessary to look beyond the record
of this case to determine that either the majority's construction
is inadequate, or that there was insufficient evidence to support
the "utter disregard" factor here. The record, which the majority
takes pains to assure us "could not be more chilling,"
ante,
at 465,15 includes an explicit finding by the trial judge that
Creech was the subject of an unprovoked attack and that the killing
took place in an "excessive violent rage." App. 52. If Creech
somehow is covered by the "utter disregard" factor as understood by
the majority (one who kills not with anger, but indifference,
ante, at 476), then there can be no doubt that the factor is
so broad as to cover any case. If Creech is not covered, then his
sentence was wrongly imposed.
III
Let me be clear about what the majority would have to show in
order to save the Idaho statute: that, on its face, the
Osborn construction-"the highest, the utmost, callous
disregard for human life, i.
e., the cold-blooded, pitiless
slayer"-refers
clearly and
exclusively to crimes that
occur "without feeling or sympathy," that is, to those that
occur
15 I note that much of the majority's discussion of the "facts
underlying this case" centers on Creech's
other crimes-which
obviously do not bear on whether "[b]y the murder, or circumstances
surrounding its commission, the defendant exhibited utter disregard
for human life" -and on the argument, repeatedly rejected by the
state courts, that Creech engineered the fight with Jensen in order
to create a pretext for killing him. The Idaho Supreme Court
explicitly noted that the trial court did not "find that the murder
had been performed on contract or by plan."
State v.
Creech, 105 Idaho 362, 364, 670 P. 2d 463, 465 (1983), cert.
denied, 465 U. S. 1051 (1984). In fact, the trial court not only
found that Jensen's attack was "unprovoked," but it went further
and found that the unprovoked nature of the attack actually
constituted a
mitigating factor. See App. 52.
489
without "anger, jealousy, revenge, or a variety of other
emotions." No such showing has been made.
There is, of course, something distasteful and absurd in the
very project of parsing this lexicon of death. But as long as we
are in the death business, we shall be in the parsing business as
well. Today's majority stretches the bounds of permissible
construction past the breaking point. "'Vague terms do not suddenly
become clear when they are defined by reference to other vague
terms,'"
Walton v.
Arizona, 497 U. S., at 693-694, n.
16 (dissenting opinion), quoting
Cartwright v.
Maynard, 822 F.2d
1477, 1489 (CAlO 1987), nor do sweeping categories become
narrow by mere restatement. The
Osborn formulation is
worthless, and neither common usage, nor legal terminology, nor the
Idaho cases support the majority's attempt to salvage it. The
statute is simply unconstitutional and Idaho should be busy
repairing it.
I would affirm the judgment of the Court of Appeals.
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