text:
    No. 93-9074.
    Font, aka Navarro v. United States.
   C. A. 3d Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 93-9075.
    Hunt v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 93-9091.
    Dunne v. Keohane, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 93-9094.
    Burton v. United States.
   C. A. 9th Cir. Certiorari denied.


author: Justice O’Connor,

text:
    No. 93-1338.
    J. Alexander Securities, Inc. v. Mendez.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.

Justice O’Connor,

with whom The Chief Justice joins,

dissenting.

Petitioner is a Los Angeles brokerage firm. When respondent opened an account there, she executed an agreement providing for arbitration of all disputes. See 17 Cal. App. 4th 1083, 1087, n. 2, 21 Cal. Rptr. 2d 826, 828, n. 2 (1993). The contract also provided that “ ‘[t]his agreement and its enforcement shall be governed by the laws of the State of New York.’ ” Id., at 1087, 21 Cal. Rptr. 2d, at 827. In 1991, respondent alleged that petitioner and one of its employees had engaged in various deceptive practices, resulting in financial losses to respondent. The parties submitted the dispute to a panel of three arbitrators convened in accordance with the rules of the National Association of Securities Dealers (NASD). The panel awarded respondent $27,000 in compensatory damages and $27,000 in punitive damages for petitioner’s failure to adequately supervise the employee. Id., at 1087-1088, 21 Cal. Rptr. 2d, at 828.

Petitioner sought to have the punitive damages portion of the award set aside, arguing that New York law prohibits arbitrators from awarding punitive damages. See Garrity v. Lyle Stuart, Inc., 40 N. Y. 2d 354, 353 N. E. 2d 793 (1976). The trial court declined to correct the award. Relying on the Federal Arbitration Act, 9 U. S. C. §2 et seq. (1988 ed. and Supp. IV), the California Court of Appeal affirmed. The court concluded that “[t]he choice of law provision [in the contract] merely designates the substantive law that the arbitrators must apply in determining whether the conduct of the parties warrants an award of punitive damages; it does not deprive the arbitrators of their authority to award punitive damages.” 17 Cal. App. 4th, at 1091, 21 Cal. Rptr. 2d, at 830.

The decision below is in accord with several federal decisions holding that the Arbitration Act pre-empts state law prohibitions on arbitral punitive damages awards. See, e. g., Todd Shipyards Corp. v. Cunard Line, Ltd., 943 F. 2d 1056 (CA9 1991); Bonar v. Dean Witter Reynolds, Inc., 835 F. 2d 1378 (CA11 1988). But the Court of Appeal expressly “decline[d] to follow two Second Circuit cases, which held ... that state law relating to the propriety of a punitive damages award by an arbitrator is not preempted by federal substantive law, and thus vacated the punitive damage[s] award.” 17 Cal. App. 4th, at 1091, n. 7, 21 Cal. Rptr. 2d, at 830, n. 7, citing Barbier v. Shearson Lehman Hutton, Inc., 948 F. 2d 117 (CA2 1991), and Fahnestock & Co. v. Wattman, 935 F. 2d 512 (CA2 1991).

Moreover, the decision below irreconcilably conflicts with Mastrobuono v. Shearson Lehman Hutton, Inc., 20 F. 3d 713 (CA7 1994). In Mastrobuono, the investor signed an agreement with the brokerage house containing an arbitration provision and a New York choice-of-law clause identical to those in the agreement in this case. The investor brought the same kinds of claims as respondent did — churning and unauthorized trading — and they were submitted to arbitration pursuant to NASD rules. The arbitration panel awarded punitive damages against the brokerage firm, but the Court of Appeals for the Seventh Circuit held that the award should be set aside. See 9 U. S. C. § 10(a)(4) (1988 ed., Supp. IV) (authorizing set-aside where “the arbitrators exceeded their powers”). The court acknowledged the strong federal policy favoring arbitration, but also noted that the policy “is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 476 (1989) (emphasis added). By incorporating New York law into the agreement, the court reasoned, the parties agreed to be bound by the New York prohibition on arbitrators’ awarding punitive damages. The Seventh Circuit expressly “recognize[d] that some circuit courts have reached a different result.” 20 F. 3d, at 718, citing Bonar v. Dean Witter Reynolds, Inc., supra; Raytheon Co. v. Automated Business Systems, Inc., 882 F. 2d 6 (CA1 1989); Todd Shipyards Corp. v. Cunara Line, Ltd., supra; Lee v. Chica, 983 F. 2d 883 (CA8), cert. denied, 510 U. S. 906 (1993).

To this list of conflicting decisions may be added the decision below. The result is that courts in different jurisdictions reach contrary results with respect to the availability of punitive damages in cases involving similarly situated parties and identical arbitration agreements. The Federal Arbitration Act was passed, in part, to prevent this kind of disarray. Because most securities agreements contain arbitration provisions, and many are governed by New York law, the ability of arbitrators to award punitive damages in these circumstances is an important and recurring question of federal law. The state and federal courts have divided as to how this question should be answered; I would therefore grant the petition for a writ of certiorari.


text:
    No. 93-1637.
    Medical Society of the State of New York et al. v. Sobol, Commissioner of the Department of Education of New York, et al.
   Ct. App. N. Y. Motion of American Medical Association for leave to file a brief as amicus curiae granted. Certiorari denied.


author: Justice Blackmun,

text:
    No. 93-8109.
    Hughes v. Texas.
   Ct. Grim. App. Tex. Motion of petitioner to strike the brief in opposition denied. Certiorari denied.

Justice Blackmun,

dissenting.

Adhering to my view that the death penalty cannot be imposed fairly within the constraints of our Constitution, see my dissent in Callins v. Collins, 510 U. S. 1141, 1143 (1994), I would grant certiorari and vacate the death sentence in this case.


text:
    No. 93-8151.
    No. 93-8207.
    No. 93-8636.
    Moran v. Pennsylvania. Espinosa v. Florida. George v. Murray, Director, Virginia Department of Corrections.
   Sup. Ct. Pa.; Sup. Ct. Fla.; and Sup. Ct. Va. Certiorari denied.

Justice Blackmun,

dissenting.

Adhering to my view that the death penalty cannot be imposed fairly within the constraints of our Constitution, see my dissent in Callins v. Collins, 510 U. S. 1141, 1143 (1994), I would grant certiorari and vacate the death sentences in these cases.


text:
    No. 93-1235.
    No. 93-1391.
    No. 93-1472.
    No. 93-6893.
    Austin et al. v. United Parcel Service, Hornback v. United States, Siegel v. James Island Public Service District et al., Holly v. Brennan, Warden, et al., Baker v. Shalala, Secretary of Health and Human Services, Shockey v. Badger Coal Co. et al., Boothe v. Stanton, Rose et al. v. Merrell Dow Pharmaceuticals et al., Erwin v. United States District Court for the Northern District of Texas, Buchanan v. South Carolina, Taylor v. Johnson, Warden,
   510 U. S. 1196;

ante, p. 1070;

ante, p. 1053;

ante, p. 1047;

No. 93-7421.

No. 93-7479.

No. 93-7773.

No. 93-8063.

No. 93-8099.

No. 93-8246.

No. 93-8296.

ante, p. 1035;

ante, p. 1035;

ante, p. 1009;

ante, p. 1040;

ante, p. 1025;

ante, p. 1074; and

ante, p. 1044. Petitions for rehearing denied.


text:
    June 7, 1994
    No. 93-8811.
    In re Kukes.
   Petition for writ of mandamus dismissed under this Court’s Rule 46.


author: Chief Justice Rehnquist Justice O’Connor, Justice Blackmun, Justice Ginsburg,

text:
    ROMANO v. OKLAHOMA
    No. 92-9093.
    Argued March 22, 1994
    Decided June 13, 1994

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 14. Blackmun, J., filed a dissenting opinion, post, p. 15. Ginsburg, J., filed a dissenting opinion, in which Blackmun, Stevens, and Souter, JJ., joined, post, p. 15.

      Lee Ann Jones Peters argued the cause for petitioner. With her on the briefs was Robert A. Ravitz.

      A. Diane Blalock, Assistant Attorney General of Oklahoma, argued the cause for respondent. With her on the brief was Sandra D. Howard, Assistant Attorney General.

      A brief of amici curiae urging affirmance was filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A. Cordray, State Solicitor, Simon B. Karas, Deputy Chief Counsel, and Cordelia A. Glenn and Mary L. Hollern, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Pamela Carter of Indiana, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, and Stephen D. Rosenthal of Virginia.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioner murdered and robbed Roger Sarfaty in 1985. In 1986, he murdered and robbed Lloyd Thompson. Petitioner was tried separately for each murder. The Thompson trial occurred first, and an Oklahoma jury found petitioner guilty and sentenced him to death. Petitioner was then tried for the Sarfaty murder. A different Oklahoma jury found him guilty and sentenced him to death. During the sentencing phase of the Sarfaty trial, the State introduced a copy of the judgment and sentence petitioner received for the Thompson murder. Petitioner contends that the admission of evidence regarding his prior death sentence undermined the Sarfaty jury’s sense of responsibility for determining the appropriateness of the death penalty, in violation of the Eighth and Fourteenth Amendments. We disagree and hold that the admission of this evidence did not amount to constitutional error.

In Oklahoma, capital trials are bifurcated into guilt and sentencing phases. Okla. Stat., Tit. 21, § 701.10 (1981). The sentencing jury may not impose a death sentence unless it unanimously finds the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, and that any aggravating circumstances outweigh any mitigating circumstances. §701.12. At the sentencing phase of the Sarfaty trial, the State sought to prove four aggravating circumstances, two of which are relevant to our decision: (1) that petitioner had been previously convicted of a violent felony; and (2) that petitioner would constitute a continuing threat to society.

In attempting to establish these two aggravating circumstances, the State introduced evidence relating to the Thompson murder. The State presented testimony by Thompson’s neighbor concerning her observations the day of the murder, Thompson’s autopsy report, and photographs and fingerprints showing that the defendant in the Thompson case was in fact petitioner. The State also introduced a copy of the judgment and sentence from the Thompson murder conviction. That document revealed that petitioner had been convicted of first-degree murder and had been sentenced to death. App. 5-6. It also showed, and the trial court told the jury, that petitioner planned on appealing from the judgment and sentence. Id., at 7. Petitioner’s counsel objected to the admission of the document. He argued that, regardless of the admissibility of the evidence of petitioner’s conviction, the death sentence petitioner received was not proper for the jury to consider. The trial court overruled the objection and admitted the evidence. Petitioner later presented evidence in mitigation.

Before closing arguments, the trial court instructed the jury. It identified the four aggravating circumstances the State sought to establish and told the jury that “[i]n determining which sentence you may impose in this case, you may consider only those [four] circumstances.” Id., at 9. The court then identified the 17 mitigating circumstances offered by petitioner. The jury was instructed that it could not impose the death penalty unless it unanimously found that one or more aggravating circumstances existed beyond a reasonable doubt and that any such circumstances outweighed any mitigating circumstances. Id., at 8-12. In closing, the court admonished the jury:

“You are the determiner of the facts. The importance and worth of the evidence is for you to decide.
“I have made rulings during the second part of this trial. In ruling, I have not in any way suggested to you, nor intimidated [sic] in any way, what you should decide. I do not express any opinion whether or not aggravating circumstances or mitigating circumstances did or did not exist, nor do I suggest to you in any way the punishment to be imposed by you.
“You must not use any kind of chance in reaching a verdict, but you must rest it on the belief of each of you who agrees with it.” Id., at 13.

The jury found that all four aggravating circumstances existed and that they outweighed the mitigating circumstances. It accordingly imposed a death sentence. Petitioner appealed. While his appeal in this case was pending, the Oklahoma Court of Criminal Appeals overturned petitioner’s conviction for the Thompson murder. See Romano v. Oklahoma, 827 P. 2d 1335 (1992) (Romano I). The Oklahoma Court of Criminal Appeals held that petitioner’s trial should have been severed from that of his codefendant; it therefore reversed and remanded for a new trial.

In his appeal in this case, petitioner argued, inter alia, that the trial court erred by admitting evidence of his conviction and sentence for the Thompson murder. He asserted that it was improper to admit the conviction because it was not final at the time of admission, and it had since been overturned. He also contended that the evidence of his death sentence in the Thompson case impermissibly reduced the Sarfaty sentencing jury’s sense of responsibility for its decision, in violation of Caldwell v. Mississippi, 472 U. S. 320 (1985).

The Oklahoma Court of Criminal Appeals affirmed. 847 P. 2d 368, 390 (1993) (Romano II). The Oklahoma court concluded that the evidence regarding petitioner’s prior death sentence was irrelevant. Because the jury was properly instructed in this case, however, it could not be said “that the jury in any way shifted the responsibility for their decision or considered their decision any less significant than they would otherwise.” Ibid. The Court of Criminal Appeals further held that the admission of the evidence “did not so infect the sentencing determination with unfairness as to make the determination to impose the death penalty a denial of due process.” Id., at 391.

Petitioner sought our review, and we granted certiorari, limited to the following question: “Does admission of evidence that a capital defendant already has been sentenced to death in another case impermissibly undermine the sentencing jury’s sense of responsibility for determining the appropriateness of the defendant’s death, in violation of the Eighth and Fourteenth Amendments?” 510 U. S. 943 (1993). We now affirm.

It is helpful to begin by placing petitioner’s challenge within the larger context of our Eighth Amendment death penalty jurisprudence. We have held that the Eighth Amendment’s concern that the death penalty be both appropriate and not randomly imposed requires the States to perform two somewhat contradictory tasks in order to impose the death penalty.

First, States must properly establish a threshold below which the penalty cannot be imposed. McCleskey v. Kemp, 481 U. S. 279, 305 (1987). To ensure that this threshold is met, the “State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold.” Ibid. As we stated in Lowenfield v. Phelps, 484 U. S. 231 (1988), “[t]o pass constitutional muster, a capital sentencing scheme 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.’” Id., at 244 (quoting Zant v. Stephens, 462 U. S. 862, 877 (1983)). In this respect, a State’s sentencing procedure must suitably direct and limit the decisionmaker’s discretion “ ‘so as to minimize the risk of wholly arbitrary and capricious action.’” Id., at 874 (quoting Gregg v. Georgia, 428 U. S. 153, 189 (1976)). Petitioner does not allege that Oklahoma’s sentencing scheme fails to adequately perform the requisite narrowing.

Second, States must ensure that “capital sentencing decisions rest on [an] individualized inquiry,” under which the “character and record of the individual offender and the circumstances of the particular offense” are considered. McCleskey, supra, at 303 (internal quotation marks omitted); see also Clemons v. Mississippi, 494 U. S. 738, 748 (1990). To this end, “States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant.” McCleskey, supra, at 306.

Within these constitutional limits, “the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished.” Blystone v. Pennsylvania, 494 U. S. 299, 309 (1990). This latitude extends to evidentiary rules at sentencing proceedings. See, e.g., Gregg, supra, at 203-204 (approving “the wide scope of evidence and argument allowed at presentence hearings” in Georgia). As we observed in California v. Ramos, 463 U. S. 992, 999 (1983):

“In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court’s principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty.”

See also id., at 1008 (“Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment”).

We have also held, in Caldwell v. Mississippi, that the jury must not be misled regarding the role it plays in the sentencing decision. See 472 U. S., at 336 (plurality opinion); id., at 341-342 (O’Connor, J., concurring in part and concurring in judgment). The prosecutor in Caldwell, in remarks which “were quite focused, unambiguous, and strong,” misled the jury to believe that the responsibility for sentencing the defendant lay elsewhere. Id., at 340. The trial judge “not only failed to correct the prosecutor’s remarks, but in fact openly agreed with them.” Id., at 339.

The plurality concluded that the prosecutor’s remarks, along with the trial judge’s affirmation, impermissibly “minimize[d] the jury’s sense of responsibility for determining the appropriateness of death.” Id., at 341. Such a diminution, the plurality felt, precluded the jury from properly performing its responsibility to make an individualized determination of the appropriateness of the death penalty. Id., at 330-331. Justice O’Connor, in her opinion concurring in part and concurring in the judgment, identified more narrowly the infirmity in the prosecutor’s remarks: “In my view, the prosecutor’s remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility.” Id., at 342.

As Justice O’Connor supplied the fifth vote in Caldwell, and concurred on grounds narrower than those put forth by the plurality, her position is controlling. See Marks v. United States, 430 U. S. 188, 193 (1977); Gregg, supra, at 169, n. 15. Accordingly, we have since read Caldwell as “relevant only to certain types of comment — those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.” Darden v. Wainwright, 477 U. S. 168, 184, n. 15 (1986). Thus, “[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law.” Dugger v. Adams, 489 U. S. 401, 407 (1989); see also Sawyer v. Smith, 497 U. S. 227, 233 (1990).

Petitioner argues that Caldwell controls this case. He contends that the evidence of his prior death sentence impermissibly undermined the sentencing jury’s sense of responsibility, in violation of the principle established in Caldwell. We disagree. The infirmity identified in Caldwell is simply absent in this case: Here, the jury was not affirmatively misled regarding its role in the sentencing process. The evidence at issue was neither false at the time it was admitted, nor did it even pertain to the jury’s role in the sentencing process. The trial court’s instructions, moreover, emphasized the importance of the jury’s role. As the Court of Criminal Appeals observed:

“The jury was instructed that it had the responsibility for determining whether the death penalty should be imposed.... It was never conveyed or intimated in any way, by the court or the attorneys, that the jury could shift its responsibility in sentencing or that its role in any way had been minimized.” Romano II, 847 P. 2d, at 390.

We do not believe that the admission of evidence regarding petitioner’s prior death sentence affirmatively misled the jury regarding its role in the sentencing process so as to diminish its sense of responsibility. The admission of this evidence, therefore, did not contravene the principle established in Caldwell.

That this case is different from Caldwell only resolves part of petitioner’s challenge. In addition to raising a “Caldwell” claim, petitioner presents a more general contention: He argues that because the evidence of his prior death sentence was inaccurate and irrelevant, the jury’s consideration of it rendered his sentencing proceeding so unreliable that the proceeding violated the Eighth Amendment. See Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opinion); Woodson v. North Carolina, 428 U. S. 280, 305 (1976). The Oklahoma court agreed that the “evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense.” Romano II, supra, at 391. That the evidence may have been irrelevant as a matter of state law, however, does not render its admission federal constitutional error. See Estelle v. McGuire, 502 U. S. 62, 67 (1991).

Some of the cases upon which petitioner relies for support, to be sure, do hold that the Constitution bars the introduction of certain evidence at sentencing proceedings. But these cases are plainly inapposite. Petitioner cites, for example, Dawson v. Delaware, 503 U. S. 159 (1992). There we held that the trial court erred by admitting evidence, at Dawson’s capital sentencing proceeding, regarding Dawson’s membership in a white racist prison gang known as the Aryan Brotherhood. See id., at 162-163. It was constitutional error, however, only because the admission violated “Dawson’s First Amendment rights.” Id., at 167. Dawson thus involved application of the principle first enunciated in Zant: An aggravating circumstance is invalid if “it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected.” 462 U. S., at 885. Petitioner does not argue that the admission of evidence regarding his prior death sentence allowed the jury to consider, in aggravation, constitutionally protected conduct. Accordingly, our decisions in Dawson and Zant do not support petitioner’s contention.

Petitioner also cites Johnson v. Mississippi, 486 U. S. 578 (1988), but it, too, is inapposite. There we reversed the imposition of Johnson’s death sentence because the only evidence supporting an aggravating factor turned out to be invalid, and because the Mississippi Supreme Court refused to reweigh the remaining, untainted aggravating circumstances against the mitigating circumstances. Id., at 586, 590, n. 8. Similarly, in this case the only evidence supporting the “prior violent felony” aggravating circumstance was the judgment from petitioner’s conviction for the Thompson murder. That evidence, like the evidence in Johnson, was rendered invalid by the reversal of petitioner’s conviction on appeal.

Here, however, the Oklahoma Court of Criminal Appeals struck the “prior violent felony” aggravator, reweighed the three untainted aggravating circumstances against the mitigating circumstances, and still concluded that the death penalty was warranted. See Romano II, supra, at 389, 393-394. The Court of Criminal Appeals’ approach is perfectly consistent with our precedents, including Johnson, where we remanded without limiting the Mississippi Supreme Court’s authority to reweigh the remaining aggravating circumstances against the mitigating circumstances. See 486 U. S., at 590; id., at 591 (White, J., concurring); see also Clemons, 494 U. S., at 744-750. Contrary to petitioner’s assertion, Johnson does not stand for the proposition that the mere admission of irrelevant and prejudicial evidence requires the overturning of a death sentence.

Petitioner’s argument, pared down, seems to be a request that we fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern the admissibility of evidence at capital sentencing proceedings. We have not done so in the past, however, and we will not do so today. The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings. Cf. Payne v. Tennessee, 501 U. S. 808, 824-825 (1991); Blystone, 494 U. S., at 309.

Petitioner finally argues that the introduction of the evidence in question violated the Due Process Clause of the Fourteenth Amendment. It is settled that this Clause applies to the sentencing phase of capital trials. See, e.g., Payne, supra, at 825; Clemons, supra, at 746 (“[C]apital sentencing proceedings must of course satisfy the dictates of the Due Process Clause”).

We believe the proper analytical framework in which to consider this claim is found in Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974). There we addressed a claim that remarks made by the prosecutor during his closing argument were so prejudicial as to violate the defendant’s due process rights. We noted that the case was not one in which the State had denied a defendant the benefit of a specific constitutional right, such as the right to counsel, or in which the remarks so prejudiced a specific right as to amount to a denial of that right. Id., at 643. Accordingly, we sought to determine whether the prosecutor’s remark “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Ibid. We concluded, after an “examination of the entire proceedings,” that the remarks did not amount to a denial of constitutional due process. Ibid.

The relevant question in this case, therefore, is whether the admission of evidence regarding petitioner’s prior death sentence so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process. See Sawyer, 497 U. S., at 244 (observing that “[t]he Caldwell rule was . .. added to [Donnelly’s] existing guarantee of due process protection against fundamental unfairness”); see also Darden, 477 U. S., at 178-181 (in analyzing allegedly improper comments made by prosecutor during closing argument of guilt-innocence stage of capital trial, “[t]he relevant question is whether the prosecutors’ comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’ ” (quoting Donnelly, supra, at 643)). Under this standard of review, we agree with the Oklahoma Court of Criminal Appeals that the admission of this evidence did not deprive petitioner of a fair sentencing proceeding.

The evidence that petitioner received a death sentence for murdering Thompson was deemed irrelevant by the Oklahoma Court of Criminal Appeals. See Romano II, 847 P. 2d, at 391. However, if the jurors followed the trial court’s instructions, which we presume they did, see Richardson v. Marsh, 481 U. S. 200, 206-207, 211 (1987), this evidence should have had little — if any — effect on their deliberations. Those instructions clearly and properly described the jurors’ paramount role in determining petitioner’s sentence, and they also explicitly limited the jurors’ consideration of aggravating factors to the four which the State sought to prove. Regardless of the evidence as to petitioner’s death sentence in the Thompson case, the jury had sufficient evidence to justify its conclusion that these four aggravating circumstances existed. Although one of the aggravating circumstances proved invalid when petitioner’s conviction for the Thompson murder was overturned on appeal, the other three remained untainted and still outweighed the mitigating circumstances. See Romano II, supra, at 389, 393-394. In short, the instructions did not offer the jurors any means by which to give effect to the evidence of petitioner’s sentence in the Thompson murder, and the other relevant evidence presented by the State was sufficient to justify the imposition of the death sentence in this case.

Even assuming that the jury disregarded the trial court’s instructions and allowed the evidence of petitioner’s prior death sentence to influence its decision, it is impossible to know how this evidence might have affected the jury. It seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so. Either conclusion necessarily rests upon one’s intuition. To hold on the basis of this record that the admission of evidence relating to petitioner’s sentence in the Thompson case rendered petitioner’s sentencing proceeding for the Sarfaty murder fundamentally unfair would thus be an exercise in speculation, rather than reasoned judgment.

The judgment of the Oklahoma Court of Criminal Appeals is

Affirmed.

Justice O’Connor,

concurring.

The Court today, relying in part on my opinion in Caldwell v. Mississippi, 472 U. S. 320, 341 (1985), rejects petitioner’s claim that the introduction of evidence of a prior death sentence impermissibly undermined the jury’s sense of responsibility. I write separately to explain why in my view petitioner’s Caldwell claim fails. The inaccuracy of the prosecutor’s argument in Caldwell was essential to my conclusion that the argument was unconstitutional. See id., at 342 (“[T]he prosecutor’s remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility”). An accurate description of the jury’s role — even one that lessened the jury’s sense of responsibility — would have been constitutional. Ibid. (“[A] misleading picture of the jury’s role is not sanctioned by [California v. Ramos, 463 U. S. 992 (1983),] [b]ut neither does Ramos suggest that the Federal Constitution prohibits the giving of accurate instructions regarding postsentencing procedures”).

Accordingly, I believe that petitioner’s Caldwell claim fails because the evidence here was accurate at the time it was admitted. Petitioner’s sentencing jury was told that he had been sentenced to death — and indeed he had been. Introducing that evidence is no different than providing the jury with an accurate description of a State’s appellate review process. Both may (though we can never know for sure) lessen the jury’s sense of responsibility, but neither is unconstitutional. Though evidence like that involved in this case can rise to the level of a Caldwell violation, to do so the evidence must be both inaccurate and tend to undermine the jury’s sense of responsibility. Ibid.

It may well have been better practice for the State to agree to accept petitioner’s stipulation offer, or to excise the sentencing information before submitting the Judgment and Sentence form to the jury. But under our precedents, because this evidence was accurate, I do not believe its introduction violated the Constitution.

Justice Blackmun,

dissenting.

I join Justice Ginsburg’s dissent, which persuasively demonstrates why the admission of Romano’s prior death sentence, like the prosecutor’s arguments in Caldwell v. Mississippi, 472 U. S. 320 (1985), created an unacceptable risk of leading the jurors to minimize the importance of their roles. Even if this particular constitutional error were not present in this case, I would vacate Romano’s death sentence and remand for resentencing in adherence to my view that the death penalty cannot be imposed fairly within the constraints of our Constitution. See Callins v. Collins, 510 U. S. 1141, 1143 (1994).

Justice Ginsburg,

with whom Justice Blackmun, Justice Stevens, and Justice Souter join,

dissenting.

In Caldwell v. Mississippi, 472 U. S. 320 (1985), this Court overturned a capital sentence as inadequately reliable because of a statement made by the prosecutor, in closing argument at the penalty phase of the trial. The Caldwell prosecutor told the jury: “ ‘[Y]our [sentencing] decision is not the final decision’”; “‘the decision you render is automatically reviewable by the [State] Supreme Court.’ ” Id., at 325-326. Responding to the issue presented in Caldwell, this Court observed that capital sentencing jurors, required to determine “whether a specific human being should die at the hands of the State,” id., at 329, are “placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice,” id., at 333. Such jurors, the Court noted, might find “highly attractive” the prosecutor’s suggestion that persons other than themselves would bear “responsibility for any ultimate determination of death.” Id., at 332-333.

The possibility the jury might have embraced the prosecutor’s suggestion, the Court concluded, rendered the imposition of the death penalty inconsistent with the Constitution’s requirement of individualized and reliable capital sentencing procedures. See id., at 323, 329-330, 340-341. Emphasizing the “ ‘truly awesome responsibility’ ” imposed upon capital sentencing juries, id., at 329, quoting McGautha v. California, 402 U. S. 183, 208 (1971), the Court held:

“[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” 472 U. S., at 328-329.

In my view, this principle, reiterated throughout the Court’s Caldwell opinion, covers the present case: The jury’s consideration of evidence, at the capital sentencing phase of petitioner Romano’s trial, that a prior jury had already sentenced Romano to death, infected the jury’s life-or-death deliberations as did the prosecutorial comments condemned in Caldwell. Accordingly, I would vacate the death sentence imposed upon Romano and remand for a new sentencing hearing.

I

At the penalty phase of Romano’s trial for the murder of Roger Sarfaty, the prosecution sought to put before the jury a copy of the “Judgment and Sentence” from an earlier and unrelated prosecution. That document revealed that Romano had been convicted of the first-degree murder of Lloyd Thompson and that he was to be executed for that crime. Defense counsel offered to stipulate to Romano’s conviction for the Thompson murder, but objected to the jury’s consideration of the death sentence. The trial court overruled defense counsel’s objection and admitted the “Judgment and Sentence” document. That document stated that Romano had given “no good reason why [the] Judgment and Sentence [for the murder of Thompson] should not be pronounced,” and commanded the State’s Department of Corrections “to put the said JOHN JOSEPH ROMANO to death.” App. 6. The jury in the instant, Sarfaty murder case also sentenced Romano to death.

During the pendency of Romano’s appeal from his conviction and sentence for the Sarfaty murder, the Oklahoma Court of Criminal Appeals vacated his conviction for the Thompson murder. Romano v. State, 827 P. 2d 1335 (1992). Romano urged on appeal in the Sarfaty case that, under Caldwell v. Mississippi, it was impermissible to place before the jury,-as relevant to its deliberations whether Romano should live or die, evidence that he was already under sentence of death.

The Oklahoma court rejected that contention and affirmed Romano’s conviction and death sentence for the Sarfaty murder. 847 R 2d 368, 390 (Okla. Crim. App. 1993). In so ruling, the court acknowledged that “[^earning that the defendant had previously received a death sentence for another murder could diminish the jury’s sense of importance of its role and mitigate the consequences of [its] decision.” Ibid. The court further recognized that “evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense.” Id., at 391. Nevertheless, the court concluded, “when the jury is properly instructed as to its role and responsibility in making such a determination we cannot, on appellate review, conclude that the jur[ors] in any way shifted the responsibility for their decision or considered their decision any less significant than they would otherwise.” Id., at 390. That judgment is now before the Court.

II

In Caldwell, this Court found constitutionally impermissible a prosecutor’s statement, at the penalty phase of a capital trial, that the jury’s decision was “not the final decision” because it was “automatically reviewable.” The prosecutor’s assurances were impermissible, the Court ruled, because they created an unacceptable risk that the jury would “minimize the importance of its role,” “believ[ing] that the responsibility for determining the appropriateness of the defendant’s death rest[ed] elsewhere.” Caldwell, 472 U. S., at 333, 329. This belief, the Court explained, is inconsistent with the “heightened ‘need for reliability’ ” in capital sentencing. Id., at 323, quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion).

The risk of diminished jury responsibility was also grave in Romano’s case. Revealing to the jury that Romano was condemned to die for the Thompson murder signaled to the jurors in the Sarfaty murder case that Romano faced execution regardless of their life-or-death decision in the case before them. Jurors so informed might well believe that Romano’s fate had been sealed by the previous jury, and thus was not fully their responsibility. See People v. Hope, 116 Ill. 2d 265, 274, 508 N. E. 2d 202, 206 (1986) (‘“[T]he jury’s awareness of defendant’s prior death sentence would diminish its sense of responsibility____ Assuming that defendant was already going to be executed, the jurors may consider their own decision considerably less significant than they otherwise would.’ ”), quoting People v. Davis, 97 Ill. 2d 1, 26, 452 N. E. 2d 525, 537 (1983); West v. State, 463 So. 2d 1048, 1052-1053 (Miss. 1985) (“[I]f the jury knows that the [defendant] is already under a sentence of death it would tend to relieve them of their separate responsibility to make that determination.”).

A juror uncertain whether to vote for death or for life might be swayed by the knowledge that “ ‘another jury had previously resolved the identical issue adversely to defendant.’ ” Hope, 116 Ill. 2d, at 274, 508 N. E. 2d, at 206, quoting Davis, 97 Ill. 2d, at 26, 452 N. E. 2d, at 537. Such a juror, although “unconvinced that death is the appropriate punishment, . . . might nevertheless wish to ‘send a message’ of extreme disapproval for the defendant’s acts,” Caldwell, 472 U. S., at 331, reasoning that the defendant was already to be executed in any event. Furthermore, jurors otherwise inclined to hold out for a life sentence might acquiesce in a death penalty they did not truly believe warranted. Cf. id., at 333 (“[0]ne can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in.”).

Respondent State of Oklahoma correctly observes, however, that evidence of a prior death sentence may not produce a unidirectional bias toward death. Brief for Respondent 23. Some jurors, otherwise inclined to believe the defendant deserved the death penalty for the crime in the case before them, might nonetheless be anxious to avoid any feeling of responsibility for the defendant’s execution. Jurors so minded might vote for a life sentence, relying on the prior jury’s determination to secure defendant’s death. See ante, at 14. The offending prosecutorial comments in Caldwell, by contrast, created an apparently unidirectional “bias toward a death sentence,” for the appellate review that the Caldwell jurors were encouraged to consider could occur only if the jury sentenced the defendant to death, not if it voted for life. 472 U. S., at 331-332. Oklahoma maintains that Romano remains outside the Caldwell principle, because he is unable to demonstrate that the evidence of his prior death sentence tilted the jurors toward death.

Romano’s prosecutor, at least, seems to have believed that informing the jurors of the prior death sentence would incline them toward death, for otherwise, he probably would not have insisted upon introducing the “Judgment and Sentence” itself, over Romano’s objection, and despite Romano’s offer to stipulate to the underlying conviction. Most critically, Caldwell, as I comprehend that decision, does not require Romano to prove that the prosecutor’s hunch was correct, either in Romano’s case in particular or in death penalty cases generally.

Caldwell dominantly concerns the capital sentencing jury’s awareness and acceptance of its “ ‘awesome responsibility.’ ” Id., at 341. To assure that acceptance, this Court’s Eighth Amendment jurisprudence instructs, capital sentencing procedures must be especially reliable. See id., at 323 (prosecutor’s comments were “inconsistent with the Eighth Amendment’s heightened ‘need for reliability in the determination that death is the appropriate punishment in a specific case’ ”), quoting Woodson v. North Carolina, 428 U. S., at 305; 472 U. S., at 341 (death sentence “does not meet the standard of reliability that the Eighth Amendment requires,” when it may have been affected by the State’s attempt “to minimize the jury’s sense of responsibility for determining the appropriateness of death”). Under Caldwell’s reasoning, diminution of jurors’ sense of responsibility violates the Eighth Amendment’s reliability requirement, whether or not a defendant can demonstrate empirically that the effect of this diminution .was to bias the jurors’ judgment toward death. According to Caldwell, if a reviewing court “cannot say” that an effort “to minimize the jury’s sense of responsibility for determining the appropriateness of death . . . had no effect on the sentencing decision,... [t]he sentence of death must ... be vacated” as unreliable. Ibid.

Ill

The Court today reads Caldwell to apply only if the jury has been “affirmatively misled regarding its role in the sentencing process.” Ante, at 9. According to the Court, because no information, incorrect when conveyed, was given to the jury responsible for sentencing Romano for Sarfaty’s murder, “[t]he infirmity identified in Caldwell is simply absent in this case.” Ibid.

The Court rests its rendition of Caldwell on the premise that only a plurality of the Court’s Members endorsed the principle I regard as pivotal: Diminution of the jury’s sense of responsibility “preclude^] the jury from properly performing its [charge] to make an individualized determination of the appropriateness of the death penalty.” See ante, at 8, citing Caldwell, 472 U. S., at 330-331,341. In fact, however, key portions of Caldwell that the Court attributes to a plurality of four were joined by five of the eight Justices who participated in that case. Justice O’Connor parted company with the other Members of the majority only as to a discrete, three-paragraph section, Part IV-A (id., at 335-336), in which “[t]he Court,” in her view, “seem[ed] generally to characterize information regarding appellate review as ‘wholly irrelevant to the determination of the appropriate sentence.’ ” Id., at 342 (opinion concurring in part and concurring in judgment), quoting id., at 336. Justice O’Con-nor explained that she did not read California v. Ramos, 463 U. S. 992 (1983), “to imply that the giving of nonmisleading and accurate information regarding the jury’s role in the sentencing scheme is irrelevant to the sentencing decision.” 472 U. S., at 341 (emphasis deleted). It was in that context that Justice O’Connor stated her view, quoted ante, at 8-9, that “ ‘the prosecutor’s remarks were impermissible,’ ” not because they referred to the existence of post-sentence review, but “because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility.” 472 U. S., at 342.

Justice O’Connor’s opinion thus appears to rest on “grounds narrower” than those relied upon by the other Members of the Court’s Caldwell majority, see ante, at 9, only insofar as her concurrence disavowed any implication that the “giving of accurate instructions regarding postsentencing procedures,” 472 U. S., at 342, is irrelevant or unconstitutional. The evidence of Romano’s death sentence for the murder of Thompson, however, was not information regarding postsentencing procedures Romano might pursue. Nor, as the Oklahoma Court of Criminal Appeals found, was the “Judgment and Sentence” for Thompson’s murder relevant to the Sarfaty jury’s sentencing decision. 847 R 2d, at 391 (“evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense”). Accordingly, I do not read Justice O’Connor’s concurring opinion as narrowing the Court’s Caldwell holding with respect to the issue this case presents. Nor, for reasons set out in the margin, do I agree with the Court that several post -Caldwell cases, beginning with Darden v. Wainwright, 477 U. S. 168 (1986), confirm the narrow interpretátion of Caldwell the Court announces today. See ante, at 9.

Finally, the Court relies, as did the Oklahoma Court of Criminal Appeals, on the trial court’s instruction to the jurors that “ ‘[t]he importance and worth of the evidence is for you to decide,’ ” together with the court’s disavowal of any view as to the appropriate punishment. Ante, at 5. The Court quotes the Oklahoma court’s conclusion that “ ‘[i]t was never conveyed or intimated in any way, by the court or the attorneys, that the jury could shift its responsibility in sentencing or that its role in any way had been minimized.’” Ante, at 9, quoting 847 P. 2d, at 390.

Plainly, the trial court’s instruction to consider the evidence cannot resolve the Caldwell problem in this case: The “Judgment and Sentence” form, bearing Romano’s prior death sentence, was part of the evidence the jury was told to consider. Further, once it is acknowledged that evidence of the prior death sentence “could diminish the jury’s sense of importance of its role and mitigate the consequences of [its] decision,” 847 P. 2d, at 390, it cannot be said that the court or attorneys did not “conve[y] or intimat[e]” that the jury’s role was diminished. The prosecution proffered the death-commanding “Judgment and Sentence” as evidence, and the trial court admitted it — over Romano’s objection, and despite his offer to stipulate to the conviction. As discussed supra, at 18-21, admission of that evidence risked leading jurors to “minimize the importance of [their] role,” “believfing] that the responsibility for determining the appropriateness of the defendant’s death restfed] elsewhere.” Caldwell, 472 U. S., at 333,329. This risk was “unacceptable in light of the ease with which [it] could have been minimized.” Turner v. Murray, 476 U. S. 28, 36 (1986) (opinion of White, J.).

IV

Permitting the jury to consider evidence that Romano was already under sentence of death, while that jury determined whether Romano should live or die, threatened to “minimize the jury’s sense of responsibility for determining the appropriateness of death.” Unable to say that the jury’s consideration of. Romano’s prior death sentence “had no effect on the [instant] sentencing decision,” Caldwell, 472 U. S., at 341, I would vacate that decision and remand the case for a new sentencing hearing.

       The other two aggravating circumstances were that the murder was especially heinous, atrocious, and cruel, and that it was committed to avoid lawful arrest or prosecution.

       On retrial for the Thompson murder, petitioner was again convicted and again sentenced to death. Brief for Petitioner 31, n. 11.

       See 472 U. S., at 323 (sentence constitutionally invalid, because unreliable, if “the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case”); id., at 333 (“[T]he uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role.”); id., at 341 (because the State’s effort “to minimize the jury’s sense of responsibility for determining the appropriateness of death” might have affected the sentencing decision, the death sentence must be vacated).

       The court also observed that, although death sentences attract “heightened” appellate scrutiny, “a presumption of correctness” attends the jury’s determination. 847 P. 2d, at 391.

       Romano was subsequently reconvicted at his second trial for the Thompson murder and again sentenced to death. See Brief for Petitioner 31, n. 11. The State does not suggest that these events affect the question we consider.

       In its merits brief before this Court, but not in its state-court brief or in its brief in opposition to the petition for certiorari, the State of Oklahoma has argued that the evidence of Romano’s prior sentence may have been relevant. This belated argument does not persuade. The only authority the State cites holding that a prior death sentence may be relevant evidence at sentencing is Commonwealth v. Beasley, 505 Pa. 279, 288, 479 A. 2d 460, 465 (1984); that case decided, purely as a matter of state statutory construction, that the term “conviction” could be taken to include the sentence imposed for an earlier conviction.

      In Darden, the Court rejected a Caldwell challenge to a prosecutor’s _ comments at the guilt phase of a capital trial. The Court observed that the fact that the prosecutor did not make these comments at the penalty phase “greatly reduc[ed] the chance that they had any effect at all on sentencing.” 477 U. S., at 183-184, n. 15. Further, unlike the “Judgment and Sentence” form in Romano’s case, the comments made in Darden were not evidence, and the trial court told the jury so “several times.” Finally, the Court concluded that the prosecutor’s comments would have had, “[i]f anything, ... the tendency to increase the jury’s perception of its role,” not diminish it. Ibid.

      The Court also relies upon Dugger v. Adams, 489 U. S. 401, 407 (1989), and Sawyer v. Smith, 497 U. S. 227, 233 (1990). In Adams, the Court stated that “the merit of respondent’s Caldwell claim is irrelevant to our disposition of the case.” 489 U. S., at 408, n. 4. In Sawyer, the question the Court considered was not whether a Caldwell violation had occurred, but whether “Caldwell announced a new rule as defined by Teague v. Lane, 489 U. S. 288 (1989),” i. e., whether Caldwell “was . . . dictated by prior precedent existing at the time the [habeas petitioner’s] conviction became final.” 497 U. S., at 229, 235.

       The State argues that any Caldwell problems were resolved, because the “Judgment and Sentence” form stated that Romano “gave notice of his intention to appeal from the Judgment and Sentence herein pronounced,” App. 7, and because the trial judge told the jury, when the form was admitted, that “[Romano] has been convicted but it is on appeal and has not become final,” Tr. 45 (May 26, 1987). See Brief for Respondent 19-22. I do not find these general references to appellate review sufficient to salvage the instant death sentence, given the irrelevance of Romano’s prior sentence to legitimate sentencing considerations, see 847 P. 2d, at 391, and the ease with which all Caldwell difficulty could have been avoided.


author: Justice Blackmun Justice O’Connor, Justice Scalia,

text:
    UNITED STATES v. CARLTON
    No. 92-1941.
    Argued February 28, 1994
    Decided June 13, 1994

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. O’Connor, J., filed an opinion concurring in the judgment, post, p. 35. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 39.

      Kent L. Jones argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Paup, Deputy Solicitor General Wallace, Gilbert S. Rothenberg, and Teresa E. McLaughlin.

      Russell G. Allen argued the cause and filed a brief for respondent. With him on the brief was Phillip R. Kaplan.

      Briefs of amici curiae urging affirmance were filed for the Washington Legal Foundation et al. by Joseph E. Schmitz, Charles A Shanor, Daniel J. Popeo, and Paul D. Kamenar; and for Anthony C. Morici, Jr., Executor and Trustee of the estate of McNamee, by Charles C. Marson.

   Justice Blackmun

delivered the opinion of the Court.

In 1987, Congress amended a provision of the federal estate tax statute by limiting the availability of a recently added deduction for the proceeds of sales of stock to employee stock-ownership plans (E SOP’s). Congress provided that the amendment would apply retroactively, as if incorporated in the original deduction provision, which had been adopted in October 1986. The question presented by this case is whether the retroactive application of the amendment violates the Due Process Clause of the Fifth Amendment.

I

Congress effected major revisions of the Internal Revenue Code in the Tax Reform Act of 1986,100 Stat. 2085. One of those revisions was the addition of a new estate tax provision applicable to any estate that filed a timely return after the date of the Act, October 22, 1986. The new provision, codified as 26 U. S. C. §2057 (1982 ed., Supp. IV), granted a deduction for half the proceeds of “any sale of employer securities by the executor of an estate” to “an employee stock ownership plan.” § 2057(b). In order to qualify for the deduction, the sale of securities had to be made “before the date on which the [estate tax] return . . . [was] required to be filed (including any extensions).” § 2057(c)(1).

Respondent Jerry W. Carlton, the executor of the will of Willametta K. Day, deceased, sought to utilize the § 2057 deduction. Day died on September 29, 1985. Her estate tax return was due December 29, 1986 (after Carlton had obtained a 6-month filing extension). On December 10, 1986, Carlton used estate funds to purchase 1.5 million shares of MCI Communications Corporation for $11,206,000, at an average price of $7.47 per share. Two days later, Carlton sold the MCI stock to the MCI ESOP for $10,575,000, at an average price of $7.05 per share. The total sale price thus was $631,000 less than the purchase price. When Carlton filed the estate tax return on December 29, 1986, he claimed a deduction under § 2057 of $5,287,000, for half the proceeds of the sale of the stock to the MCI ESOP. The deduction reduced the estate tax by $2,501,161. The parties have stipulated that Carlton engaged in the MCI stock transactions specifically to take advantage of the § 2057 deduction.

On January 5, 1987, the Internal Revenue Service (IRS) announced that, “[pjending the enactment of clarifying legislation,” it would treat the §2057 deduction as available only to estates of decedents who owned the securities in question immediately before death. See IRS Notice 87-13, 1987-1 Cum. Bull. 432, 442. A bill to enact such an amendment to § 2057 was introduced in each Chamber of Congress on February 26, 1987. See 133 Cong. Rec. 4145 and 4293 (1987).

On December 22, 1987, the amendment to §2057 was enacted. As amended, the statute provided that, to qualify for the estate tax deduction, the securities sold to an ESOP must have been “directly owned” by the decedent “immediately before death.” Omnibus Budget Reconciliation Act of 1987, § 10411(a), 101 Stat. 1330-432. The 1987 amendment was made effective as if it had been contained in the statute as originally enacted in October 1986. § 10411(b).

The IRS disallowed the deduction claimed by Carlton under § 2057 on the ground that the MCI stock had not been owned by his decedent “immediately before death.” Carlton paid the asserted estate tax deficiency, plus interest, filed a claim for refund, and instituted a refund action in the United States District Court for the Central District of California. He conceded that the estate did not qualify for the deduction under the 1987 amendment to § 2057. He argued, however, that retroactive application of the 1987 amendment to the estate’s 1986 transactions violated the Due Process Clause of the Fifth Amendment. The District Court rejected his argument and entered summary judgment in favor of the United States.

A divided panel of the Court of Appeals for the Ninth Circuit reversed. 972 F. 2d 1051 (1992). The majority considered two factors paramount in determining whether retroactive application of a tax violates due process: whether the taxpayer had actual or constructive notice that the tax statute would be retroactively amended, and whether the taxpayer reasonably relied to his detriment on preamendment law. The court concluded that both factors rendered retroactive application of the amendment in this case unduly harsh and oppressive and therefore unconstitutional. Judge Norris dissented. In his view, the 1987 amendment was within the wide latitude of congressional authority to legislate retroactively in regulating economic activity. We granted certiorari, 510 U. S. 810 (1993).

II

This Court repeatedly has upheld retroactive tax legislation against a due process challenge. See, e.g., United States v. Hemme, 476 U. S. 558 (1986); United States v. Darusmont, 449 U. S. 292 (1981); Welch v. Henry, 305 U. S. 134 (1938); United States v. Hudson, 299 U. S. 498 (1937); Milliken v. United States, 283 U. S. 15 (1931); Cooper v. United States, 280 U. S. 409 (1930). Some of its decisions have stated that the validity of a retroactive tax provision under the Due Process Clause depends upon whether “retroactive application is so harsh and oppressive as to transgress the constitutional limitation.” Welch v. Henry, 305 U. S., at 147, quoted in United States v. Hemme, 476 U. S., at 568-569. The “harsh and oppressive” formulation, however, “does not differ from the prohibition against arbitrary and irrational legislation” that applies generally to enactments in the sphere of economic policy. Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 733 (1984). The due process standard to be applied to tax statutes with retroactive effect, therefore, is the same as that generally applicable to retroactive economic legislation:

“Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by rational means, judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches ....
“To be sure, . . . retroactive legislation does have to meet a burden not faced by legislation that has only future effects. . . . ‘The retroactive aspects of legislation, as well as the prospective aspects, must meet the test of due process, and the justifications for the latter may not suffice for the former’.... But that burden is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Id., at 729-730, quoting Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 16-17 (1976).

There is little doubt that the 1987 amendment to §2057 was adopted as a curative measure. As enacted in October 1986, § 2057 contained no requirement that the decedent have owned the stock in question to qualify for the ESOP proceeds deduction. As a result, any estate could claim the deduction simply by buying stock in the market and immediately reselling it to an ESOP, thereby obtaining a potentially dramatic reduction in (or even elimination of) the estate tax obligation.

It seems clear that Congress did not contemplate such broad applicability of the deduction when it originally adopted §2057. That provision was intended to create an “incentive for stockholders to sell their companies to their employees who helped them build the company rather than liquidate, sell to outsiders or have the corporation redeem their shares on behalf of existing shareholders.” Joint Committee on Taxation, Tax Reform Proposals: Tax Treatment of Employee Stock Ownership Plans (ESOPs), 99th Cong., 2d Sess., 37 (Joint Comm. Print 1985); see also 132 Cong. Rec. 14507 (1986) (statement of Sen. Long) (§ 2057 “allow[s]... an executor to reduce taxes on an estate by one-half by selling the decedent’s company to an ESOP”). When Congress initially enacted §2057, it estimated a revenue loss from the deduction of approximately $300 million over a 5-year period. See 133 Cong. Rec. 4145 (1987) (statement of Rep. Rostenkowski); id., at 4293 (statement of Sen. Bentsen). It became evident shortly after passage of the 1986 Act, however, that the expected revenue loss under § 2057 could be as much as $7 billion — over 20 times greater than anticipated — because the deduction was not limited to situations in which the decedent owned the securities immediately before death. Ibid. In introducing the amendment in February 1987, Senator Bentsen observed: “Congress did not intend for estates to be able to claim the deduction by virtue of purchasing stock in the market and simply reselling the stock to an ESOP . . . and Congress certainly did not anticipate a $7 billion revenue loss.” Id., at 4294. Without the amendment, Senator Bent-sen stated, “taxpayers could qualify for the deductions by engaging in essentially sham transactions.” Ibid.

We conclude that the 1987 amendment’s retroactive application meets the requirements of due process. First, Congress’ purpose in enacting the amendment was neither illegitimate nor arbitrary. Congress acted to correct what it reasonably viewed as a mistake in the original 1986 provision that would have created a significant and unanticipated revenue loss. There is no plausible contention that Congress acted with an improper motive, as by targeting estate representatives such as Carlton after deliberately inducing them to engage in ESOP transactions. Congress, of course, might have chosen to make up the unanticipated revenue loss through general prospective taxation, but that choice would have burdened equally “innocent” taxpayers. Instead, it decided to prevent the loss by denying the deduction to those who had made purely tax-motivated stock transfers. We cannot say that its decision was unreasonable.

Second, Congress acted promptly and established only a modest period of retroactivity. This Court noted in United States v. Darusmont, 449 U. S., at 296, that Congress “almost without exception” has given general revenue statutes effective dates prior to the dates of actual enactment. This “customary congressional practice” generally has been “confined to short and limited periods required by the practicalities of producing national legislation.” Id., at 296-297. In Welch v. Henry, 305 U. S. 134 (1938), the Court upheld a Wisconsin income tax adopted in 1935 on dividends received in 1933. The Court stated that the “ ‘recent transactions’ ” to which a tax law may be retroactively applied “must be taken to include the receipt of income during the year of the legislative session preceding that of its enactment.” Id., at 150. Here, the actual retroactive effect of the 1987 amendment extended for a period only slightly greater than one year. Moreover, the amendment was proposed by the IRS in January 1987 and by Congress in February 1987, within a few months of § 2057’s original enactment.

Respondent Carlton argues that the 1987 amendment violates due process because he specifically and detrimentally relied on the preamendment version of §2057 in engaging in the MCI stock transactions in December 1986. Although Carlton’s reliance is uncontested — and the reading of the original statute on which he relied appears to have been correct — his reliance alone is insufficient to establish a constitutional violation. Tax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code. Justice Stone explained in Welch v. Henry, 305 U. S., at 146-147:

“Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process . . . .”

Moreover, the detrimental reliance principle is not limited to retroactive legislation. An entirely prospective change in the law may disturb the relied-upon expectations of individuals, but such a change would not be deemed therefore to be violative of due process.

Similarly, we do not consider respondent Carlton’s lack of notice regarding the 1987 amendment to be dispositive. In Welch v. Henry, the Court upheld the retroactive imposition of a tax despite the absence of advance notice of the legislation. And in Milliken v. United States, the Court rejected a similar notice argument, declaring that a taxpayer “should be regarded as taking his chances of any increase in the tax burden which might result from carrying out the established policy of taxation.” 283 U. S., at 23.

In holding the 1987 amendment unconstitutional, the Court of Appeals relied on this Court’s decisions in Nichols v. Coolidge, 274 U. S. 531 (1927), Blodgett v. Holden, 275 U. S. 142 (1927), and Untermyer v. Anderson, 276 U. S. 440 (1928). Those cases were decided during an era characterized by exacting review of economic legislation under an approach that “has long since been discarded.” Ferguson v. Skrupa, 372 U. S. 726, 730. (1963). To the extent that their authority survives, they do not control here. Blodgett and Untermyer, which involved the Nation’s first gift tax, essentially have been limited to situations involving “the creation of a wholly new tax,” and their “authority is of limited value in assessing the constitutionality of subsequent amendments that bring about certain changes in operation of the tax laws.” United States v. Hemme, 476 U. S., at 568. Nichols involved a novel development in the estate tax which embraced a transfer that occurred 12 years earlier. The amendment at issue here certainly is not properly characterized as a “wholly new tax,” and its period of retroactive effect is limited. Nor do the above cases stand for the proposition that retroactivity is permitted with respect to income taxes, but prohibited with respect to gift and estate taxes. In Hemme and Milliken, this Court upheld retroactive features of gift and estate taxes.

III

In focusing exclusively on the taxpayer’s notice and reliance, the Court of Appeals held the congressional enactment to an unduly strict standard. Because we conclude that retroactive application of the 1987 amendment to §2057 is rationally related to a legitimate legislative purpose, we conclude that the amendment as applied to Carlton’s 1986 transactions is consistent with the Due Process Clause.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice O’Connor,

concurring in the judgment.

The unamended 26 U. S. C. § 2057, which allowed taxpayers to reduce the taxable estate by buying securities and reselling them to employee stock ownership plans (E SOP’s), made it possible to avoid estate taxes by structuring transactions in a certain way. But the tax laws contain many such provisions. See, e. g., 26 U. S. C. § 2055 (allowing deductions from taxable estate for transfers to the government, charities, and religious organizations). And §2057 was only the latest in a series of congressional efforts to promote E SOP’s by providing tax incentives. See, e. g., 26 U. S. C. § 133 (partial income tax exclusion for interest paid to banks on ESOP loans); 26 U. S. C. § 1042 (allowing certain taxpayers to defer capital gains taxes on sale of securities to E SOP’s).

Thus, although respondent Carlton may have made a “purely tax-motivated stock transfe[r],” ante, at 32,1 do not understand the Court to express any normative disapproval of this course of action. As executor of Willametta Day’s estate, it was entirely appropriate for Carlton to seek to reduce the estate taxes. And like all taxpayers, Carlton was entitled to structure the estate’s affairs to comply with the tax laws while minimizing tax liability. As Learned Hand observed with characteristic acerbity:

“[A] transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation. Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes. Therefore, if what was done here, was what was intended by [the statute], it is of no consequence that it was all an elaborate scheme to get rid of [estate] taxes, as it certainly was.” Helvering v. Gregory, 69 F. 2d 809, 810 (CA2 1934) (citations omitted), aff’d, 293 U. S. 465 (1935).

To say that Carlton did nothing wrong in claiming the deduction does not, of course, answer the question whether Congress deprived him of due process by amending § 2057. As we have noted, “the retroactive aspects of economic legislation, as well as the prospective aspects, must meet the test of due process: a legitimate legislative purpose furthered by rational means.” General Motors Corp. v. Romein, 503 U. S. 181, 191 (1992) (internal quotation marks omitted).

The Court finds it relevant that, according to prominent members of the tax-writing committees of each House, the statute as originally enacted would have cost the Government too much money and would have allowed taxpayers to avoid tax by engaging in sham transactions. See ante, at 31-32. Thus, the Court reasons that the amendment to §2057 served the legislative purpose of “correcting]” a “mistake” Congress made the first time. Ante, at 32. But this mode of analysis proves too much. Every law touching on an area in which Congress has previously legislated can be said to serve the legislative purpose of fixing a perceived problem with the prior state of affairs — there is no reason to pass a new law, after all, if the legislators are satisfied with the old one. Moreover, the subjective motivation of Members of Congress in passing a statute — to the extent it can even be known — is irrelevant in this context: It is sufficient for due process analysis if there exists some legitimate purpose underlying the retroactivity provision. Cf. FCC v. Beach Communications, Inc., 508 U. S. 307, 313-315 (1993).

Retroactive application of revenue measures is rationally related to the legitimate governmental purpose of raising revenue. In enacting revenue measures, retroactivity allows “the legislative body, in the revision of tax laws, to distribute increased costs of government among its taxpayers in the light of present need for revenue and with knowledge of the sources and amounts of the various classes of taxable income during the taxable period preceding revision.” Welch v. Henry, 305 U. S. 134, 149 (1938). For this reason, .

“[i]n enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment.... Usually the ‘retroactive’ feature has application only to that portion of the current calendar year preceding the date of enactment, but [some statutes have been] applicable to an entire calendar year that had expired preceding enactment. This ‘retroactive’ application apparently has been confined to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice.” United States v. Darusmont, 449 U. S. 292, 296-297 (1981) (per curiam).

But “the Court has never intimated that Congress possesses unlimited power to ‘readjust rights and burdens . . . and upset otherwise settled expectations.’” Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211, 229 (1986) (O’Connor, J., concurring) (brackets omitted), quoting Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 16 (1976). The governmental interest in revising the tax laws must at some point give way to the taxpayer’s interest in finality and repose. For example, a “wholly new tax” cannot be imposed retroactively, United States v. Hemme, 476 U. S. 558, 568 (1986), even though such a tax would surely serve to raise money. Because the tax consequences of commercial transactions are a relevant, and sometimes dispositive, consideration in a taxpayer’s decisions regarding the use of his capital, it is arbitrary to tax transactions that were not subject to taxation at the time the taxpayer entered into them. See Welch v. Henry, supra, at 147.

Although there is also an element of arbitrariness in retroactively changing the rate of tax to which the transaction is subject, or the availability of a deduction for engaging in that transaction, our cases have recognized that Congress must be able to make such adjustments in an attempt to equalize actual revenue and projected budgetary requirements. In every case in which we have upheld a retroactive federal tax statute against due process challenge, however, the law applied retroactively for only a relatively short period prior to enactment. See United States v. Hemme, supra, at 562 (1 month); United States v. Darusmont, supra, at 294-295 (10 months); United States v. Hudson, 299 U. S. 498, 501 (1937) (1 month). In Welch v. Henry, supra, the tax was enacted in 1935 to reach transactions completed in 1933; but we emphasized that the state legislature met only biannually and it made the revision “at the first opportunity after the tax year in which the income was received.” 305 U. S., at 151. A period of retroactivity longer than the year preceding the legislative session in which the law was enacted would raise, in my view, serious constitutional questions. But in keeping with Congress’ practice of limiting the retroactive effect of revenue measures (a practice that may reflect Congress’ sensitivity to the due process problems that would be raised by overreaching), the December 1987 amendment to § 2057 was made retroactive only to October 1986. Given our precedents and the limited period of retroactivity, I concur in the judgment of the Court that applying the amended statute to respondent Carlton did not violate due process.

Justice Scalia,

with whom Justice Thomas joins, concurring in the judgment.

If I thought that “substantive due process” were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation. Although there is not much precision in the concept “ ‘harsh and oppressive,’ ” which is what the Court has adopted as its test of substantive due process unconstitutionality in the field of retroactive tax legislation, see, e. g., United States v. Hemme, 476 U. S. 558, 568-569 (1986), quoting Welch v. Henry, 305 U. S. 134, 147 (1938), surely it would cover a retroactive amendment that cost a taxpayer who relied on the original statute’s clear meaning over $600,000. Unlike the tax at issue in Hemme, here the amendment “without notice, . . . gives a different and more oppressive legal effect to conduct undertaken before enactment of the statute.” 476 U. S., at 569.

The Court attempts to minimize the amendment’s harshness by characterizing it as “a curative measure,” quoting some post-legislation legislative history (another oxymoron) to show that, despite the uncontested plain meaning of the statute, Congress never meant it to apply to stock that was not owned by the decedent at the time of death. See ante, at 31-32. I am not sure that whether Congress has treated a citizen oppressively should turn upon whether the oppression was, after all, only Congress’ “curing” of its own mistake. Even if it should, however, what was done to respondent here went beyond a “cure.” The retroactivity not only hit him with the tax that Congress “meant” to impose originally, but it caused his expenditures incurred in invited reliance upon the earlier law to become worthless. That could have been avoided, of course, by providing a tax credit for such expenditures. Retroactively disallowing the tax benefit that the earlier law offered, without compensating those who incurred expenses in accepting that offer, seems to me harsh and oppressive by any normal measure.

The Court seeks to distinguish our precedents invalidating retroactive taxes by pointing out that they involved the imposition of new taxes rather than a change in tax rates. See ante, at 34. But eliminating the specifically promised reward for costly action after the action has been taken, and refusing to reimburse the cost, is even more harsh and oppressive, it seems to me, than merely imposing a new tax on past actions. The Court also attempts to soften the impact of the amendment by noting that it involved only “a modest period of retroactivity.” Ante, at 32. But in the case of a tax-incentive provision, as opposed to a tax on a continuous activity (like the earning of income), the critical event is the taxpayer’s reliance on the incentive, and the key timing issue is whether the change occurs after the reliance; that it occurs immediately after rather than long after renders it no less harsh.

The reasoning the Court applies to uphold the statute in this case guarantees that all retroactive tax laws will henceforth be valid. To pass constitutional muster the retroactive aspects of the statute need only be “rationally related to a legitimate legislative purpose.” Ante, at 35. Revenue raising is certainly a legitimate legislative purpose, see U. S. Const., Art. I, § 8, cl. 1, and any law that retroactively adds a tax, removes a deduction, or increases a rate rationally furthers that goal. I welcome this recognition that the Due Process Clause does not prevent retroactive taxes, since I believe that the Due Process Clause guarantees no substantive rights, but only (as it says) process, see TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 470-471 (1993) (Scalia, J., concurring in judgment).

I cannot avoid observing, however, two stark discrepancies between today’s due process reasoning and the due process reasoning the Court applies to its identification of new so-called fundamental rights, such as the right to structure family living arrangements, see Moore v. East Cleveland, 431 U. S. 494 (1977) (plurality opinion), and the right to an abortion, see Roe v. Wade, 410 U. S. 113 (1973). First and most obviously, where respondent’s claimed right to hold onto his property is at issue, the Court upholds the tax amendment because it rationally furthers a legitimate interest; whereas when other claimed rights that the Court deems fundamental are at issue, the Court strikes down laws that concededly promote legitimate interests, id., at 150, 162. Secondly, when it is pointed out that the Court’s retroactive-tax ruling today is inconsistent with earlier decisions, see, e. g., Nichols v. Coolidge, 274 U. S. 531 (1927); Blodgett v. Holden, 275 U. S. 142 (1927); Untermyer v. Anderson, 276 U. S. 440 (1928), the Court dismisses those cases as having been “decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’ ” Ante, at 34, quoting Ferguson v. Skrupa, 372 U. S. 726, 730 (1963). But economic legislation was not the only legislation subjected to “exacting review” in those bad old days, and one wonders what principled reason justifies “discarding” that bad old approach only as to that category. For the Court continues to rely upon “exacting review” cases of the Nichols-Blodgett-Untermyer vintage for its due process “fundamental rights” jurisprudence. See, e. g., Roe, supra, at 152-153, 159 (citing Meyer v. Nebraska, 262 U. S. 390, 399 (1923), and Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925)); see also Griswold v. Connecticut, 381 U. S. 479, 483 (1965) (“[W]e reaffirm the principle of the Pierce and the Meyer cases”).

The picking and choosing among various rights to be accorded “substantive due process” protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called “economic rights” (even though the Due Process Clause explicitly applies to “property”) unquestionably involves policymaking rather than neutral legal analysis. I would follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.

       Section 2057 was repealed for estates of decedents who died after December 19, 1989. See Omnibus Budget Reconciliation Act of 1989, § 7304(a), 103 Stat. 2352.

       Section 2057(e) defined “employer securities” by reference to §409(0 of the Code, which in turn defined the term generally as “common stock issued by the employer (or by a corporation which is a member of the same controlled group) which is readily tradable on an established securities market.” 26 U. S. C. §409(0(1) (1982 ed., Supp. IV).

       The amendment also required that employer securities qualifying for the deduction must, after the sale, be allocated to participants or held for future allocation in accordance with certain rules.