Return to CALJIC Part 5-8 – Contents
F 8.85(i) Inst 1
Age: Death Eligibility Begins At 18
ALTERNATIVE FORMS:
#1. The categorical minimum age for death eligibility is 18. Consider this as your reference point in evaluating what mitigating weight to give the fact that ________________ (defendant) was _____ years old at the time of the killing.
#2. In weighing the defendant’s age consider that under the United States Constitution no person is eligible for the death penalty unless he or she was at least 18 years old at the time of the killing.
[or]
#3. Defendant was ___ years old when he committed the crimes of which you have found him guilty. If defendant had been under [18 years old] [___ [months] [years] younger] when the crimes were committed, he or she would not be eligible for the death penalty.
#4. You may still consider the defendant’s age at the time of the killing as mitigating even though he or she was over 18 years old. He or she would not be eligible for the death penalty if he or she had been less than 18 years old.
Points and Authorities
The 8th and 14th Amendments require that the jury consider and give effect to youth as a mitigating factor. (See Roper v. Simmons (2005) 543 US 551 [161 LEd2d 1; 125 SCt 1183]]; Graham v. Collins (93) 506 US 461 [122 LEd2d 260, 273; 113 SCt 892].) However, absent clarification the jury may believe that age is a mitigating factor only if the defendant is under 18 years old. People v. Brown (2003) 31 C4th 518 concluded that such an instruction was argumentative. However, that opinion did not address the above discussed need to assure that the jurors properly consider and apply the mitigating evidence. (Compare People v. Yeoman (2003) 31 C4th 93, 151 [defense contention that CJ 8.86 and CJ 8.87 are argumentative rejected because the instructions promoted proper juror consideration of aggravating evidence].) Hence, the above proposed instruction should be given to assure that defendant’s 8th and 14th Amendment rights are protected.
Furthermore, now that Roper has clarified the Eighth Amendment underpinnings of youth as mitigation, the instruction is constitutionally required even if argumentative. (See generally DP II(16) [8th Amendment trumps domestic procedural rules]; see also FORECITE PG VII(C)(28) [Domestic Rules Of Evidence May Not Be Invoked To Abridge A Criminal Defendant’s Right To A Fair Trial].)
Moreover, Roper puts a new perspective on age as a mitigating factor. Because the 8th Amendment draws the line for death eligibility at 18, that should be the reference point for evaluating the mitigating weight of the defendant’s age. In other words, the continuum for considering age as mitigation should start at 18, the categorical minimum, not at birth. Otherwise the mitigating evidence will be arbitrarily diluted in violation of the Eighth Amendment. Thus, a juror who believes that the categorical minimum is 16 will be prone to give less mitigating weight to a 19-year-old’s age because his or her age will be falsely perceived as three years above the minimum.
In sum, failure to instruct on the categorical minimum will arbitrarily dilute the mitigating evidence and undermine the reliability of the death verdict. Indeed, a juror who believes that the defendant was three years over the minimum may give no mitigating weight to age. For example, the jury should know and consider that even though a 19-year-old has had 19 years of life, for purposes of mitigation he or she is only one year above the categorical minimum.
The federal death penalty statute addresses this problem by identifying as a mitigating factor the fact that “[t]he defendant was youthful, although not under the age of 18.” (21 USC 848(m)(5).)
By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 US 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 L.Ed.2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
Tuilaepa Does Not Preclude This Instruction. See FORECITE F 8.85(i) Inst 3.
NOTE: Proposed instruction #2 was given in People v. Marshall (90) 50 C3d 907, 930 [269 CR 269].)
JURY ARGUMENT ALERT: If the above instruction is rejected, counsel should have the right to read this language to the jury during without contradiction by the prosecution. (See FORECITE F 1.00l.)
F 8.85(i) Inst 2
Age Includes Psychological Immaturity
*Add at end of CALJIC 8.85(i):
Under this factor you may consider the defendant’s psychological immaturity in mitigation.
Points and Authorities
In People v. Cox (91) 53 C3d 618, 675 [280 CR 692], the court recognized that under the “age” factor the defense may rely upon the defendant’s “psychological immaturity.” (See also Roper v. Simmons (2005) 543 US 551 [161 LEd2d 1; 125 SCt 1183]; c.f., Penry v. Johnson (2001) 532 US 782 [150 LEd2d 9; 121 SCt 1910, 1923-24] [death sentence unlawful because jury had inadequate opportunity to consider mitigating evidence of defendant’s retardation and childhood abuse]; but see People v. Smithey (99) 20 C4th 936 [86 CR2d 243] [refusal of requested instruction that mental age of retarded defendant should be considered as evidence of mitigation not error where jury generally instructed to consider defendant’s mental retardation and mental age in deciding appropriate penalty].) CALJIC 8.85(i) does not tell the jury that “psychological immaturity” may be considered as mitigation under the age factor.
By promoting a reliable, non-arbitrary, and individualized sentencing determination, this instruction protects the defendant’s federal constitutional rights to be free from cruel and unusual punishment and to due process and equal protection. (8th and 14th Amendments.) (E.g., Sochor v. Florida (92) 504 U.S. 527 [119 LEd2d 326; 112 SCt 2114]; Penry v. Lynaugh (89) 492 US 302, 318 [106 LEd2d 256; 109 SCt 2934]; Clemons v. Mississippi (90) 494 US 738 [108 LEd2d 725; 110 SCt 1441]; McCleskey v. Kemp (87) 481 US 279 [95 LEd2d 262; 107 SCt 1756].)
See also FORECITE F 8.85(i) Inst 3 & 4.
Tuilaepa Does Not Preclude This Instruction. See FORECITE F 8.85(i) Inst 3.
F 8.85(i) Inst 3
Factors Relevant To Mitigation Weight Of Defendant’s Age
*Add to CJ 8.85:
Defendant was ____ years old at the time of the killing. In determining what mitigating weight to give this fact consider whether [his] [her] youth contributed to any of the following:
1. A lack of maturity;
2. An underdeveloped sense of responsibility;
3. Greater vulnerability to negative influences and outside pressures, including peer pressures.
4. Transitory rather than fixed personality traits.
Points and Authorities
The plurality in Thompson v. Oklahoma (99) 487 US 815 "recognized the import" of the characteristics set forth in the above instruction with respect to juveniles under 16. (oper v. Simmons (2005) 543 US 551 [161 LEd2d 1; 125 SCt 1183, 1196] citing Thompson, 487 US at 833-38.)
Roper concluded that "the same reasoning applies to all juvenile offenders under 18." (Roper, 543 US at 571.)
For offenders 18 and over the same reasoning should apply through the "age" criterion. "Youth is more than a chronological age." (Eddings v. Oklahoma (82) 455 US 104, 115 [71 LEd2d 1; 102 SCt 869]; see also Roper, 543 US at 569.) "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18." (Roper, 543 US at 574.) Hence, the jurors should consider the mitigating weight of the defendant’s youth "in every case." (Roper, 543 US at 572.) Yet the weighing of youth as mitigation is not an easy task. "It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. [Citation.]" (Roper, 543 US at 573.)
Accordingly, every effort should be made to give the lay jurors as much guidance as possible in making this difficult evaluation. Simply instructing the jury to consider the defendant’s age at the time of the offense (CJ 8.85(i)) does not suffice. Without specification of the relevant criteria identified by the Roper and Thompson courts there is no assurance that the jurors reliably weighed the mitigating impact of the defendant’s age. (See Roper, 543 US at 573 [recognizing that “youth may even be counted against [the defendant]” and implying the need for rules “to ensure that the mitigating force of youth is not overlooked”].)
In sum, to assure full and reliable juror consideration of all mitigating factors as demanded by the Eighth Amendment (see Roper, 543 US at 568), the jury should be instructed on the relevant mitigating factors set forth in Roper.
Tuilaepa Does Not Preclude This Instruction. It is true that Tuilaepa v. California (94) 512 US 967, 978-79 [129 LEd2d 750; 114 SCt 2630] concluded that PC 190.3 was not "flawed" for failure to instruction the sentencer how to weigh the statutory mitigating factors including age.
However, as recognized by Roper, society has changed its standards regarding youth and the death penalty since Tuilaepa was decided. Over the past 15 years “evolving standards of decency” have created a “national consensus against juvenile executions.” (Roper, 543 US at 567.) Today “our society views juveniles . . . as categorically less culpable than the average criminal.” (Ibid., internal citations and quotation marks omitted.)
Moreover, “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18.” (Id. at 574.) Accordingly, Tuilaepa should be re-examined in light of the “evolving standards of decency” identified by Roper. While the Eighth Amendment may not have required instructing the jury on how to weigh age as mitigation in 1994 — when it didn’t preclude executing juveniles — today clearer juror guidance is necessary to assure the jurors rationally consider the mitigating underpinnings of youth. Otherwise prosecutors will continue to divert the jury from the salient considerations relevant to age and urge jurors to rely on the defendant’s youth as a basis for executing him. (See Roper, 543 US at 558 [prosecutor argued: “Age, he says. Think about age. Seventeen years old. Isn’t that scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit. Quite the contrary”]; see also Tuilaepa, 512 US at 988-89, Blackmun J., dissenting [“In practice, prosecutors and trial judges have applied this factor to defendants of virtually every age: in their teens, twenties, thirties, forties, and fifties at the time of the crime”].)
While this practice may have passed constitutional muster in 1994, it doesn’t today. Now the mitigating qualities relied on by Roper are woven into our social fabric. The Eighth Amendment should not tolerate any sentencing scheme which fails to require the jurors to consider the mitigating weight of those qualities or, worse yet, allows the prosecutor to turn what society deems mitigation into aggravation. (See Roper, 543 US at 573 [recognizing that “youth may even be counted against [the defendant]” and implying the need for rules “to ensure that the mitigating force of youth is not overlooked”].)
In sum, current "standards of decency" demand that the Eighth Amendment be read to require that the sentencer in a capital case consider the mitigating factors relevant to age set forth in the above instruction.
F 8.85(i) Inst 4
Life Without Possibility Of Parole Is Severe Sanction
*Add to CJ 8.85:
In deciding between the penalties of death and life without possibility of parole consider that life without parole is a particularly severe sanction for a young person.
Points and Authorities
See Roper v. Simmons (2005) 543 US 551 [161 LEd2d 1; 125 SCt 1183, 1196].
Tuilaepa Does Not Preclude This Instruction. See FORECITE F 8.85(i) Inst 3.