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December 5, 1991


The opinion of the court was delivered by: Harold A. Ackerman, District Judge.


Bilal Pretlow, along with eight codefendants, was originally indicted on a variety of charges, including one substantive RICO count and one RICO conspiracy count. Among the racketeering acts alleged for these counts were the murders of Melanie Baker and Mutah Sessoms. On January 18, 1991, the United States filed a superseding indictment which added two further counts against Bilal Pretlow. More specifically, he was charged with intentionally causing the deaths of Melanie Baker and Mutah Sessoms while working in furtherance of a continuing criminal enterprise. Pursuant to 21 U.S.C. § 848(e)(1)(A), the government is entitled to seek the death penalty against Mr. Pretlow on either count. Accordingly, on that same date, the government filed Notices of Intention to seek the death penalty against Mr. Pretlow on both counts and filed Notices of Aggravating Factors.*fn1

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

  1. the statute is unconstitutional because it
  fails to provide for meaningful appellate review;
  2. the non-statutory aggravating factor set forth
  in the government's Notice of Aggravating Factors
  must be dismissed because the statute's allowance
  for non-statutory aggravating factors constitutes
  an unconstitutional delegation of legislative
  power and the statute's failure to require
  proportionality review when non-statutory
  aggravating factors are considered renders the
  statute unconstitutional;
  3. the statute is unconstitutional because it
  permits a relaxed evidentiary standard at the
  penalty phase which renders any finding
  4. the statute is unconstitutional as applied
  here because the aggravating factors listed at
  21 U.S.C. § 848(n)(1) simply duplicate elements of the
  capital crimes with which Mr. Pretlow is charged
  rather than narrow the class of murders for which a
  death sentence may be imposed;
  5. the aggravating factor listed at
  21 U.S.C. § 848(n)(12) — that the offense was committed in
  an especially heinous, cruel, or depraved manner in
  that it involved torture or serious physical abuse
  to the victim — is unconstitutional both facially
  and as applied here;
  6. the aggravating factor listed at;
  21 U.S.C. § 848(n)(9) — that the victim was particularly
  vulnerable due to her youth — is unconstitutional
  both facially and as applied here;
  7. the prohibition against racial discrimination
  set forth in 21 U.S.C. § 848(o) is unconstitutional
  to the extent that it bars Mr. Pretlow from
  presenting relevant mitigating evidence;
  8. Mr. Pretlow was arbitrarily singled out for
  exposure to the death penalty in violation of his
  fifth and eight amendment rights;
  9. the government has vindictively sought the
  death penalty against Mr. Pretlow because of his
  refusal to plead guilty and, therefore, should be
  barred from further pursuing the imposition of
  that penalty;
  10. the statute is unconstitutional because the
  death penalty constitutes cruel and unusual
  punishment in all circumstances.

In addition, the Association of Criminal Lawyers of New Jersey ("Association"), which has been granted leave to appear in this matter as amicus curiae raises one additional argument not specifically mentioned by Mr. Pretlow. The Association asserts the statute is unconstitutional because it fails to permit a defendant from offering and the jury from considering the circumstances of the crime as a mitigating factor.*fn2 Not surprisingly, the government has opposed all of these arguments. I will now discuss each of them in turn.

I.  Meaningful Appellate Review

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

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

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

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

  (1) In any case in which the sentence of death is
  imposed under this section, the sentence of death
  shall be subject to review by the court of
  appeals upon appeal by the defendant. Notice of
  appeal must be filed within the time prescribed
  for appeal of judgment in section 2107 of Title
  28. An appeal under this section may be
  consolidated with an appeal of judgment of
  conviction. Such review shall have priority over
  all other cases.
  (2) On review of the sentence, the court of
  appeals shall consider the record, the evidence
  submitted during trial, the information submitted
  during the sentencing hearing, the procedures
  employed in the sentencing hearing, and the
  special findings returned under this section.
  (3) the court shall affirm the sentence if it
  determines that —
    (A) the sentence of death was not imposed under
  the influence of passion, prejudice, or any other
  arbitrary factor; and
    (B) the information supports the special
  findings of the existence of every aggravating
  factor upon which the sentence was based,
  together with or the failure to find, any
  mitigating factors as set forth or allowed in
  this section.
  In all other cases, the court shall remand the
  case for reconsideration under this section. The
  court of appeals shall state in writing the
  reasons for its disposition of the review of the

See 21 U.S.C. § 848(q)(1), (2), & (3). Mr. Pretlow argues that these provisions fail to guarantee "meaningful appellate review" as the Supreme Court has defined that phrase. In fact, he maintains that this statute provides for diminished appellate review because it requires the appellate court to uphold the imposition of a death sentence unless it determines: the information presented during the penalty phase was insufficient to support the jury findings regarding aggravating and mitigating factors, or the decision was based on passion, prejudice, or other arbitrary factors. As a result, Mr. Pretlow claims the statute excludes from appellate review various errors of law which could occur during the penalty phase of the trial but do not involve the sufficiency of the evidence and traditionally have not been classified as arbitrary factors.

If this death penalty statute actually prohibited direct appellate review of arguably reversible errors of law committed during the penalty phase of the trial, this court agrees with Mr. Pretlow that the statute would be unconstitutional. Despite the best intentions of a trial judge and the most meticulous statutory and procedural precautions, few trials are error-free. Inadvertent errors of law which substantially impinge on one party's constitutional rights do occur during the course of a trial, although hopefully infrequently. By their very nature, these harmful errors create a substantial risk that similar cases will be decided inconsistently. Where an appellate court is not permitted to correct such inconsistent results through either direct review of the error or some other means,*fn3 this risk remains unchanged. Given the uniqueness of the death penalty, however, the Supreme Court has repeatedly explained that this sort of substantial risk cannot be tolerated but instead must be minimized. See generally Furman, 408 U.S. 238, 92 S.Ct. 2726 (prohibiting the arbitrary and capricious imposition of the death penalty). Since the errors of law discussed here occur despite the careful attention of a trial court, they cannot in any practical sense be minimized at the trial level. The only alternative is to require appellate courts to minimize the inconsistencies created by such errors on direct review. See, e.g., Parker, 111 S.Ct at 739 ("We have held specifically that the Florida Supreme Court's system of independent review of death sentences minimizes the risk of constitutional error, and have noted the `crucial protection' afforded by such review in jury override cases."). Therefore, after careful consideration of Furman and its progeny, this court finds that a death penalty statute must provide for the sort of appellate review which would minimize the arbitrariness created by harmful errors of law.

As the foregoing discussion indicates, I essentially agree with Mr. Pretlow that this death penalty statute must provide for direct review of errors of law to be constitutional. However, I disagree with his contention that this statute fails to permit such review. While this court acknowledges that the appellate review provisions of this statute contains imperfections,*fn4 I believe Mr. Pretlow construes them unnecessarily narrowly so as to render them constitutionally suspect. Therefore, I decline to follow his constricted reading of the appellate review provisions. See Communications Workers v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988) ("[F]ederal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and that when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid."); DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.").

Instead, I construe these provisions as permitting appellate review of harmful errors of law. Section 848(q)(3)(A) requires an appellate court to remand any case where it finds a death sentence "imposed under the influence of . . . any other arbitrary factor." An error of law during the penalty phase of the trial which is found to be harmful must by definition be one which prejudiced the defendant by ultimately affecting either the record for the jury's consideration or the jury deliberations themselves. In either case, it means the jury's decision was not rendered in accordance with the law but rather was partially based on some impermissible factor. I believe such impermissible factors fall within the scope of the "arbitrary factors" as that term is used in Section 848(q)(3)(A).

When the appellate review provisions of this statute are appropriately construed, I find that they clearly encompass the essential elements of "meaningful appellate review" as envisioned by the Supreme Court. More specifically, the provisions clearly provide for conventional appellate review, including review of all errors of law. In addition, they direct the appellate court to consider whether or not the evidence supports the specific findings on which the death sentence rests. They also require the reviewing court to determine if the decision to impose the death sentence was affected by passion, prejudice, or other arbitrary factors. With the exception of requiring proportionality review, which the Supreme Court has found is not an essential element of a death penalty scheme, these appellate review provisions provide essentially the same scope of review as those approved by the Court in Gregg. Compare 21 U.S.C. § 848(q)(1), (2), & (3) with Gregg, 428 U.S. at 166-67, 96 S.Ct. at 2922. Accordingly, I deny Mr. Pretlow's motion to declare this statute unconstitutional on the ground that it fails to provide for "meaningful appellate review."

II. Constitutionality of the Non-statutory Aggravating Factor

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