OCTOBER TERM, 1991
Syllabus
DAWSON
v. DELAWARE
CERTIORARI TO THE SUPREME COURT OF DELAWARE
No. 90-6704. Argued November 12, 1991-Decided March 9,1992
A Delaware jury convicted petitioner Dawson of first-degree
murder and other crimes. At the penalty hearing, the prosecution,
inter alia, read a stipulation-"[t]he Aryan Brotherhood
refers to a white racist prison gang that began ... 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" -despite Dawson's assertion that the
admission of the stipulated facts violated his First and Fourteenth
Amendment rights, and introduced evidence that he had the words
"Aryan Brotherhood" tattooed on his hand. The jury found that the
aggravating circumstances-that the murder was committed by an
escaped prisoner, during the commission of a burglary, and for
pecuniary gain-outweighed Dawson's mitigating evidence-that he had
shown kindness to family members and had earned good time credits
in prison-and made a binding recommendation to the court that he be
sentenced to death. The State Supreme Court affirmed.
Held:
1. Dawson's First and Fourteenth Amendment rights were violated
by the admission of the Aryan Brotherhood evidence in this case,
because the evidence had no relevance to the issues being decided
in the proceeding. The Constitution does not erect a
per se
barrier to the admission of evidence concerning one's beliefs and
associations at sentencing simply because those beliefs and
associations are protected by the First Amendment. See,
e. g.,
Barclay v.
Florida, 463 U. S. 939. However,
the narrowness of the stipulation admitted here left the evidence
totally without relevance to the sentencing proceeding. The
stipulation says nothing about the beliefs of the Delaware prison's
chapter of the Aryan Brotherhood. Any racist beliefs the group
might hold were not tied in any way to the murder, because Dawson's
victim was white, as is Dawson. The evidence proved only the
group's and Dawson's abstract beliefs, not that the group had
committed or endorsed any unlawful or violent acts. Thus, it was
not relevant to help prove any aggravating circumstance. Cf.
Texas v.
Johnson, 491 U. S. 397, 414. Nor
was the evidence relevant to rebut any mitigating evidence, since,
while the State was entitled to introduce "bad" character evidence
to rebut Dawson's "good" character evidence, see
Payne v.
Tennessee, 501
160
u. S. 808, 825, the Aryan Brotherhood evidence cannot be viewed
as relevant "bad" character evidence in its own right. Pp.
163-168.
2. The question whether the wrongful admission of the Aryan
Brotherhood evidence was harmless error is left open for
consideration by the State Supreme Court on remand. Pp.168-169.
581 A. 2d 1078, vacated and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER,
JJ., joined. BLACKMUN, J., filed a concurring opinion,
post,
p. 169. THOMAS, J., filed a dissenting opinion,
post, p.
169.
Bernard J. O'Donnell argued the cause for
petitioner.
With him on the briefs was
Brian J.
Bartley.
Richard E. Fairbanks, Jr., argued the cause for
respondent. With him on the brief were
Charles M. Oberly
III, Attorney General of Delaware, and
Gary A. Myers and
Loren
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The question presented in this case is whether the First and
Fourteenth Amendments prohibit the introduction in a capital
sentencing proceeding of the fact that the defendant was a member
of an organization called the Aryan Brotherhood, where the evidence
has no relevance to the issues being decided in the proceeding. We
hold that they do.
Shortly after midnight on December 1, 1986, petitioner David
Dawson and three other inmates escaped from the Delaware
Correctional Center near Smyrna, Delaware. Dawson stole a car and
headed south, while the other three inmates stole another car and
drove north. Early that
* Michael A. Bamberger, Stuart Altschuler, John A.
Powell, Steven R.
Shapiro, and
Jonathan Lang filed a brief for the
American Civil Liberties Union et al. as
amici curiae urging
reversal.
Solicitor General Starr, Assistant Attorney General Mueller,
Deputy Solicitor General Bryson, and Robert A. Long, Jr., filed a
brief for the United States as amicus curiae urging affirmance.
161
morning, Dawson burglarized a house near Kenton, Delaware,
stealing a motorcycle jacket, several pocket watches, and
containers of loose change. He then proceeded to the home of
Richard and Madeline Kisner, located about half a mile from the
burglary site. Mrs. Kisner was alone in the house, preparing to
leave for work. Dawson brutally murdered Mrs. Kisner, stole the
Kisners' car and some money, and fled further south.
He reappeared later that evening at the Zoo Bar in Milford,
Delaware, wearing a motorcycle jacket that was too big for him.
While at the bar, Dawson introduced himself to Patty Dennis, and
told her that his name was "Abaddon," which he said meant "[o]ne of
Satan's disciples." App. 8081. Dawson was subsequently asked to
leave the bar. Later that evening, a Delaware state police officer
responded to a call to investigate a one-car accident. The car
involved in the accident had been stolen from a location near the
Zoo Bar and had been driven into a ditch, but the driver had left
the scene. The police began a house-to-house search for Dawson, and
found him at 5:25 the next morning, on the floor of a Cadillac
parked about three-tenths of a mile from the accident site.
A jury convicted Dawson of first-degree murder, possession of a
deadly weapon during the commission of a felony, and various other
crimes. The trial court then conducted a penalty hearing before the
jury to determine whether Dawson should be sentenced to death for
the first-degree murder conviction. See Del. Code Ann., Tit. 11, §
4209 (1987). The prosecution gave notice that it intended to
introduce (1) expert testimony regarding the origin and nature of
the Aryan Brotherhood, as well as the fact that Dawson had the
words "Aryan Brotherhood" tattooed on the back of his right hand,
(2) testimony that Dawson referred to himself as "Abaddon" and had
the name "Abaddon" tattooed in red letters across his stomach, and
(3) photographs of multiple swastika tattoos on Dawson's back and a
picture of a swastika he had painted
162
on the wall of his prison cell. Dawson argued that this evidence
was inflammatory and irrelevant, and that its admission would
violate his rights under the First and Fourteenth Amendments.
Before the penalty phase began, the parties agreed to a
stipulation regarding the Aryan Brotherhood evidence. The
stipulation provided:
"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."
App. 132.
In return for Dawson's agreement to the stipulation, the
prosecution agreed not to call any expert witnesses to testify
about the Aryan Brotherhood. Although Dawson agreed to the
stipulation in order to avoid presentation of this expert
testimony, it is apparent from the record and from the opinion of
the Supreme Court of Delaware that he continued to assert that the
admission of the stipulated facts into evidence violated the
Constitution. 581 A. 2d 1078 (1990). At the penalty hearing, the
prosecution read the stipulation to the jury and introduced
evidence that Dawson had tattooed the words "Aryan Brotherhood" on
his hand. The trial judge permitted the prosecution to present the
evidence related to the name "Abaddon" as well, but excluded all of
the swastika evidence. In addition, the prosecution submitted proof
of Dawson's lengthy criminal record. Dawson, in turn, presented
mitigating evidence based on the testimony of two family members
and on the fact that he had earned good time credits in prison for
enrolling in various drug and alcohol programs. The jury found
three statutory aggravating circumstances, each making Dawson
eligible for the death penalty under Delaware law; it determined
(1) that the murder was committed by an escaped prisoner, (2) that
the murder was committed during the commission of a burglary, and
(3)
163
that the murder was committed for pecuniary gain. See
id., at 1102, and n. 27. The jury further concluded that the
aggravating evidence outweighed the mitigating evidence, and
recommended that Dawson be sentenced to death. The trial court,
bound by that recommendation, imposed the death penalty.
The Supreme Court of Delaware affirmed the convictions and the
death sentence. The court rejected Dawson's claim that the evidence
concerning the Aryan Brotherhood and his use of the name "Abaddon"
should have been excluded from the penalty hearing. It observed
that having found at least one statutory aggravating factor, the
jury was "required to make an
individualized determination
of whether Dawson should be executed or incarcerated for life,
based upon Dawson's character, his record and the circumstances of
the crime," and that it was desirable for the jury to have as much
information before it as possible when making that decision.
Id., at 1102-1103 (emphasis in original). The court
acknowledged that the Constitution would prohibit the consideration
of certain irrelevant factors during the sentencing process, but
stated that" '[p]unishing a person for expressing his views or for
associating with certain people is substantially different from
allowing ... evidence of [the defendant's] character [to be
considered] where that character is a relevant inquiry.'''
Id., at 1103. Because the evidence relating to the Aryan
Brotherhood and the name "Abaddon" properly focused the jury's
attention on Dawson's character, and did not appeal to the jury's
prejudices concerning race, religion, or political affiliation, the
court upheld its introduction during the penalty phase. We granted
certiorari, 499 U. S. 946 (1991), to consider whether the admission
of this evidence was constitutional error. We hold that its
admission in this case was error and so reverse.
We have held that the First Amendment protects an individual's
right to join groups and associate with others holding similar
beliefs. See
Aptheker v.
Secretary of State, 378
164
u. S. 500, 507 (1964);
NAACP v.
Alabama ex rel.
Patterson, 357 U.
S. 449, 460 (1958). Because his right to associate with the
Aryan Brotherhood is constitutionally protected, Dawson argues,
admission of evidence related to that association at his penalty
hearing violated his constitutional rights. Relying on our
statement in
Zant v.
Stephens, 462 U. S. 862 (1983),
that an aggravating circumstance is invalid if "it authorizes a
jury to draw adverse inferences from conduct that is
constitutionally protected," he contends that the Constitution
forbids the consideration in sentencing of any evidence concerning
beliefs or activities that are protected under the First Amendment.
Id., at 885.
We think this submission is, in the light of our decided cases,
too broad. These cases emphasize that "the sentencing authority has
always been free to consider a wide range of relevant material."
Payne v.
Tennessee, 501 U. S. 808, 820-821
(1991);
United States v.
Tucker, 404 U. S. 443, 446 (1972)
("[A] judge 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");
Williams
v.
New York, 337 U. S. 241 (1949). We
have previously upheld the consideration, in a capital sentencing
proceeding, of evidence of racial intolerance and subversive
advocacy where such evidence was relevant to the issues involved.
In
Barclay v.
Florida, 463 U. S. 939 (1983), for
example, we held that a sentencing judge in a capital case might
properly take into consideration "the elements of racial hatred" in
Barclay's crime as well as "Barclay's desire to start a race war."
See
id., at 949 (plurality opinion);
id., at 970, and
n. 18 (STEVENS, J., concurring in judgment).
One year later, in
United States v.
Abel, 469 U. S. 45 (1984), we
held that the Government could impeach a defense witness by showing
that both the defendant and the witness were members of the Aryan
Brotherhood, and that members were sworn to lie on behalf of each
other. We held the evidence admissible to show bias, even assuming
that member-
165
ship in the organization was among the associational freedoms
protected by the First Amendment. Though
Abel did not
involve a capital sentencing proceeding, its logic is perfectly
applicable to such a proceeding. We therefore conclude that the
Constitution does not erect a
per se barrier to the
admission of evidence concerning one's beliefs and associations at
sentencing simply because those beliefs and associations are
protected by the First Amendment.
Although we cannot accept Dawson's broad submission, we
nevertheless agree with him that, in this case, the receipt into
evidence of the stipulation regarding his membership in the Aryan
Brotherhood was constitutional error. Before the penalty hearing,
the prosecution claimed that its expert witness would show that the
Aryan Brotherhood is a white racist prison gang that is associated
with drugs and violent escape attempts at prisons, and that
advocates the murder of fellow inmates. If credible and otherwise
admissible evidence to that effect had been presented, we would
have a much different case. But, after reaching an agreement with
Dawson, the prosecution limited its proof regarding the Aryan
Brotherhood to the stipulation. The brief stipulation proved only
that an Aryan Brotherhood prison gang originated in California in
the 1960's, that it entertains white racist beliefs, and that a
separate gang in the Delaware prison system calls itself the Aryan
Brotherhood. We conclude that the narrowness of the stipulation
left the Aryan Brotherhood evidence totally without relevance to
Dawson's sentencing proceeding.
As an initial matter, the second sentence of the stipulation,
when carefully parsed, says nothing about the beliefs of the Aryan
Brotherhood "chapter" in the Delaware prisons. Prior to trial, the
prosecution acknowledged that there are differences among the
various offshoots of the Aryan Brotherhood, stating that "there are
cells or specific off-shoots within various local jurisdictions
that don't see eye to eye or share a union, if you will." App. 33.
But the juxtaposition
166
of the second sentence with the first sentence, which describes
the Aryan Brotherhood in California prisons as a "white racist
prison gang," invited the jury to infer that the beliefs of the
Delaware chapter are identical to those of the California
chapter.
Even if the Delaware group to which Dawson allegedly belongs is
racist, those beliefs, so far as we can determine, had no relevance
to the sentencing proceeding in this case. For example, the Aryan
Brotherhood evidence was not tied in any way to the murder of
Dawson's victim. In
Barclay, on the contrary, the evidence
showed that the defendant's membership in the Black Liberation
Army, and his consequent desire to start a "racial war," were
related to the murder of a white hitchhiker. See 463 U. S., at
942-944 (plurality opinion). We concluded that it was most proper
for the sentencing judge to "tak[e] into account the elements of
racial hatred in this murder."
Id., at 949. In the present
case, however, the murder victim was white, as is Dawson; elements
of racial hatred were therefore not involved in the killing.
Because the prosecution did not prove that the Aryan Brotherhood
had committed any unlawful or violent acts, or had even endorsed
such acts, the Aryan Brotherhood evidence was also not relevant to
help prove any aggravating circumstance. In many cases, for
example, associational evidence might serve a legitimate purpose in
showing that a defendant represents a future danger to society. A
defendant's membership in an organization that endorses the killing
of any identifiable group, for example, might be relevant to a
jury's inquiry into whether the defendant will be dangerous in the
future. Other evidence concerning a defendant's associations might
be relevant in proving other aggravating circumstances. But the
inference which the jury was invited to draw in this case tended to
prove nothing more than the abstract beliefs of the Delaware
chapter. Delaware counters that even these abstract beliefs
constitute a portion of
167
Dawson's "character," and thus are admissible in their own right
under Delaware law. Del. Code Ann., Tit. 11, § 4209(d) (1987).
Whatever label is given to the evidence presented, however, we
conclude that Dawson's First Amendment rights were violated by the
admission of the Aryan Brotherhood evidence in this case, because
the evidence proved nothing more than Dawson's abstract beliefs.
Cf.
Texas v.
Johnson, 491 U. S. 397, 414 (1989)
("[T]he government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable"). Delaware might have avoided this problem if it had
presented evidence showing more than mere abstract beliefs on
Dawson's part, but on the present record one is left with the
feeling that the Aryan Brotherhood evidence was employed simply
because the jury would find these beliefs morally reprehensible.
Because Delaware failed to do more, we cannot find the evidence was
properly admitted as relevant character evidence.
Nor was the Aryan Brotherhood evidence relevant to rebut any
mitigating evidence offered by Dawson. We have held that a capital
defendant is entitled to introduce any relevant mitigating evidence
that he proffers in support of a sentence less than death.
Eddings v.
Oklahoma, 455 U. S. 104, 114
(1982);
Lockett v.
Ohio, 438 U. S. 586 (1978)
(plurality opinion). But just as the defendant has the right to
introduce any sort of relevant mitigating evidence, the State is
entitled to rebut that evidence with proof of its own. See
Payne v.
Tennessee, 501 U. S., at 825 ("[T]he State
has a legitimate interest in counteracting the mitigating evidence
which the defendant is entitled to put in") (internal quotation
marks omitted);
id., at 860 (STEVENS, J., dissenting). In
this case, Dawson's mitigating evidence consisted of testimony
about his kindness to family members, as well as evidence regarding
good time credits he earned in prison for enrolling in various drug
and alcohol programs. Delaware argues that because Dawson's
evidence consisted of "good" character evidence, it was entitled to
introduce any "bad" character
168
evidence in rebuttal, including that concerning the Aryan
Brotherhood. The principle of broad rebuttal asserted by Delaware
is correct, but the argument misses the mark because, as stated
above, the Aryan Brotherhood evidence presented in this case cannot
be viewed as relevant "bad" character evidence in its own
right.
The dissent takes us to task for failing to recognize the
broader implications of membership in a prison gang, and for
extending the protection of the First Amendment to evidence
introduced at a sentencing hearing. The material adduced by the
dissent as to the nature of prison gangs-similar to the evidence
which the prosecution in this case at one time considered adducing
by expert testimony,
supra, at 165-would, if it had been
presented to the jury, have made this a different case. But we do
not have the same confidence as the dissent does that jurors would
be familiar with the court decisions and studies upon which it
relies. Regarding the reach of the First Amendment, the dissent
correctly points out that it prevents the State from criminalizing
certain conduct in the first instance. But it goes further than
that. It prohibits a State from denying admission to the bar on the
grounds of previous membership in the Communist Party, when there
is no connection between that membership and the "good moral
character" required by the State to practice law.
Schware v.
Board of Bar Examiners of N.
M., 353 U. S. 232 (1957). It
prohibits the State from requiring information from an organization
that would impinge on First Amendment associational rights if there
is no connection between the information sought and the State's
interest.
Bates v.
Little Rock, 361 U. S. 516 (1960);
NAACP v.
Alabama ex rel. Patterson, 357 U. S. 449 (1958). We
think that it similarly prevents Delaware here from employing
evidence of a defendant's abstract beliefs at a sentencing hearing
when those beliefs have no bearing on the issue being tried.
The question whether the wrongful admission of the Aryan
Brotherhood evidence at sentencing was harmless
169
error is not before us at this time, and we therefore leave it
open for consideration by the Supreme Court of Delaware on remand.
See
Clemons v.
Mississippi, 494 U. S. 738 (1990).
For the foregoing reasons, we vacate the judgment of the Supreme
Court of Delaware and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN, concurring.
I join the Court's opinion, but write separately to note my
understanding that the Court, by the penultimate paragraph of its
opinion,
ante, at 168-169, does not
require
application of harmless-error review on remand.
This Court previously has declined to apply harmlesserror
analysis to certain categories of constitutional error. See,
e.
g., Batson v.
Kentucky, 476 U. S. 79, 100 (1986)
(racial discrimination in the selection of a petit jury);
Vasquez v.
Hillery, 474 U. S. 254, 261-262
(1986) (racial discrimination in the selection of a grand jury);
Waller v.
Georgia, 467 U. S. 39, 49-50, and
n. 9 (1984) (right to a public trial);
Tumey v.
Ohio,
273 U. S. 510,
535 (1927) (trial before an impartial judge). Because of the
potential chilling effect that consideration of First Amendment
activity at sentencing might have, there is a substantial argument
that harmless-error analysis is not appropriate for the type of
error before us today. See
Rose v.
Clark, 478 U. S. 570, 587 (1986)
(STEVENS, J., concurring in judgment) ("[V]iolations of certain
constitutional rights are not, and should not be, subject to
harmless-error analysis because those rights protect important
values that are unrelated to the truth-seeking function of the
trial"). The parties did not address this issue, and it is better
left for the Supreme Court of Delaware on remand.
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 Broth-
170
erhood 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.
171
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).
172
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, nondeviant 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,
173
Dawson engaged in the kind of unlawful activity mentioned by the
Court.1
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
1 Indeed, in the case of an organization claiming to be part of
the Aryan Brotherhood, the jury very well may not have needed even
the explanation that the stipulation provided. Courts regularly
have noticed that the Aryan Brotherhood is "a singularly vicious
prison gang,"
United States v.
Fountain, 840 F.2d
509, 516
(CA7 1988) (Easterbrook, J.) (citing other
cases), that it has a "hostility to black inmates,"
United
States v.
Silverstein, 732 F.2d
1338, 1341
(CA7 1984) (Posner, J.) (citing secondary
sources), and that it originated "during the prison racial violence
of the 1960's,"
United States v.
Mills, 704 F.2d
1553, 1555 (CAll 1983). The Aryan Brotherhood gangs also have
received substantial attention in both popular and scholarly
writings. See,
e. g., Matthee, Stronger Prison Gang
Influence Cited, L. A. Times, July 10, 1987, part 1, p. 34, col. 1
(describing members of the Aryan Brotherhood as "among the most
violent prisoners"); Goodgame, Mayhem in the Cellblocks, Time, Aug.
12, 1985, p. 20 (describing the Aryan Brotherhood's "inflexible
ethic of vengeance"); J. Fox, Organizational and Racial Conflict in
Maximum-Security Prisons 136 (1982) (identifying the Aryan
Brotherhood as an "extremist" organization like the Ku Klux Klan);
United States Dept. of Justice, Prison Gangs: Their Extent, Nature
and Impact on Prisons 65-190 (1985) (discussing the activities of
the Aryan Brotherhood in the prisons of 14 States). Even if the
jury were unaware of the Aryan Brotherhood in particular, it was
surely aware of the nature of prison gangs generally.
174
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 tends 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, 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 (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
175
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. 1985) (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 825 (quoting
Booth, 482 U. S., at 517 (WHITE, J., dissenting)); see also
482 U. S., at 520
176
(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,
supra, at 113-114. In applying the First Amendment, however,
the Court declines to decide whether abstract beliefs may
constitute a portion of character. "Whatever 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.
177
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).2 Although the
opinions in
Franklin endorsed
2 In federal court, Federal Rule of Criminal Procedure
32(c)(2)(A) permits the presentence report following a criminal
conviction to contain "information about the history and
characteristics of the defendant ... that may be helpful in
imposing sentence." The Advisory Committee Note to the original
version of this Rule, 18 U. S. C. App., p. 795, refers to a report
that we endorsed in
Williams v.
New York, 337 U. S. 241,250, n. 15
(1949):
Administrative Office of the United States Courts, The
Presentence Investigation Report, Pub. No. 101 (1943). This report
explains: "Centuries of human experience have given testimony to
the dynamic qualities of re-
178
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
ligion. 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).
179
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
180
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.
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