Cite as: 507 U. S. 463 (1993)
Blackmun, J., dissenting
another human being." Id., at 99, 744 P. 2d, at 269. Accord, State v. Card, 121 Idaho 425, 436, 825 P. 2d 1081, 1092 (1991). Thus, the latest statement from the Idaho Supreme Court on the issue says nothing about emotionless crimes, but, instead, sweepingly includes every murder committed that is without " 'conscientious scruples against killing.' " I can imagine no crime that would not fall within that construction.
Petitioner in his brief embraces Fain's broad construction. "In every case in which the Idaho Supreme Court has upheld a death sentence based wholly or in part on a finding of utter disregard for human life, the defendant had acted without conscientious scruple against killing." Brief for Petitioner 25. Petitioner cites this reassuring fact as the "best evidence that Idaho's utter disregard factor is not so broad that it operates simply as a catch-all for murders not covered by other aggravating circumstances." Id., at 24. This "best evidence" is not very good evidence, especially when viewed against the fact that the Idaho Supreme Court never has reversed a finding of utter disregard.14 Equally unsettling is petitioner's frank admission that the Osborn construction "does not make findings of the aggravating factors depend on the presence of particular facts. Instead Idaho has chosen to rely on the ability of the sentencing judge to make principled distinctions between capital and non-capital cases
14 The State suggests in its brief that on one occasion the Idaho Supreme Court found that the evidence did not support an utter disregard finding. Brief for Petitioner 27, citing State v. Charboneau, 116 Idaho 129, 774 P. 2d 299 (1989). It is not at all clear, however, that that is what occurred in Charboneau. The court there vacated a sentence because it was "unclear from the [trial court's] Findings whether the trial court would have imposed the death penalty without having [mistakenly] concluded that [the victim] was not mortally wounded until the second volley of shots was fired." Id., at 151, 774 P. 2d, at 321. There is no mention in this part of the opinion of the "utter disregard" factor, nor any suggestion that the erroneous finding tainted the "utter disregard" factor rather than the "heinous, atrocious, and cruel" circumstance that was at issue in that case.
487
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