Major Death Penalty Decision in McKinney

Today the U.S. Supreme Court decided two major issues in capital litigation in McKinney v. Arizona. The Court affirmed that the jury trial requirement of Ring v. Arizona applies only to the finding of an aggravating circumstance that makes a defendant eligible for the death penalty, not to the weighing process or the final sentencing decision.

The Court also reaffirmed that a state appellate court may fix a problem at trial regarding the aggravating and mitigating circumstances by reweighing them itself, rather than sending the case back for a new sentencing hearing.

CJLF’s amicus curiae brief in the case is available here.

The Supreme Court’s death penalty cases have long distinguished between two steps in the capital sentencing process. First, in the “eligibility” step some aggravating factor beyond the bare elements of murder must be found before a death sentence can even be considered. The factor is called an “aggravating circumstance” in most states. In California, it is called a “special circumstance.” In Texas, it is an additional element that must be found to convict the defendant of a higher degree of murder called “capital murder.”

Second, in the “selection” step, a sentencer with discretion must consider the aggravating and mitigating factors and make an individualized, not mechanical, decision as to whether this particular death-eligible murderer should actually be sentenced to death.

In Spaziano v. Florida (1984), Hildwin v. Florida (1989), and Walton v. Arizona (1990), the Supreme Court repeatedly rejected claims that either the Sixth or Eighth Amendments required these decisions to be made by a jury rather than a judge. Despite massive reliance on these precedents by the states, the Supreme Court overruled them in part in Ring v. Arizona (2002) and Hurst v. Florida (2016).

Both decisions indicated that they were overruling the precedents only to the extent of requiring the jury to find at least one aggravating circumstance, i.e., the eligibility step. However, some sloppy language in Hurst also referred to the selection step findings regarding weighing, leading some state courts to believe that the requirement extended to both steps.

Extending the Ring rule, which is based on Apprendi v. New Jersey (2000), to the selection step would be a disaster, even in states that have always had the jury decide both steps. Apprendi not only requires a jury to make the decision, it also requires proof beyond a reasonable doubt. Few states instruct their jurors to find that the aggravating circumstances outweigh the mitigating beyond a reasonable doubt. The whole concept of reasonable doubt makes little sense in a decision that is a value judgment and not a factual finding. If Apprendi were applied in full to the selection step, every capital case not yet final on direct appeal would have to be retried in every state with capital punishment that does not instruct its juries to make the weighing finding beyond a reasonable doubt. Again, that is most states with capital punishment.

Curiously, the Arizona Attorney General did not even brief this issue. Footnote 9 on page 29 of the brief reads:

McKinney argues that Hurst expands Ring’s holding (any fact that increases a crime’s maximum potential punishment must be found by a jury) to findings of mitigation and its assessment. Pet. Br. 29–33. It is not necessary for the Court to reach this issue to resolve the state-law finality question in Arizona’s favor, although Arizona notes its disagreement with this expansive reading of Hurst.

It might well have been possible to decide the case without resolving that question, but it was important to resolve it, particularly in light of the split among state supreme courts. CJLF did brief the issue, and resolve it the Court did:

Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. In Apprendi v. New Jersey, 530 U. S. 466 (2000), this Court carefully avoided any suggestion that “it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute.” Id., at 481. And in the death penalty context, as Justice Scalia, joined by Justice Thomas, explained in his concurrence in Ring, the decision in Ring “has nothing to do with jury sentencing. What today’s decision says is that the jury must find the existence of the fact that an aggravating factor existed.” 536 U. S., at 612; see also Kansas v. Carr, 577 U. S. ___, ___–___ (2016) (slip op., at 9–11). Therefore, as Justice Scalia explained, the “States that leave the ultimate life-or-death decision to the judge may continue to do so.” Ring, 536 U. S., at 612.

In short, Ring and Hurst did not require jury weighing of aggravating and mitigating circumstances, and Ring and Hurst did not overrule Clemons so as to prohibit appellate reweighing of aggravating and mitigating circumstances.

Mission accomplished.

The second part of today’s decision is the scope and continued vitality of Clemons v. Mississippi (1990), referred to at the end of the quote above. Because a state can constitutionally vest the weighing of aggravating and mitigating circumstances in a judge and not a jury in the first instance, it may also authorize a reviewing court to correct a trial error regarding those circumstance by reweighing the circumstances itself.

Suppose the evidence at trial consists (as it often does in capital cases) of a brick of aggravating circumstances and three pebbles of mitigating circumstances. What if the defendant establishes on appeal or habeas corpus that an error by the trial judge resulted in a pebble being incorrectly added on top of the brick on the aggravating side? Clemons held, correctly in my opinion, that an appellate court can say that the brick alone still outweighs the three pebbles and affirm the sentence.

Now suppose an error by the trial judge or ineffective assistance by defense counsel resulted in a fourth pebble being incorrectly omitted from the mitigating side. Should the Clemons rule apply? Can a reviewing court say the brick still outweighs the four pebbles? Of course. That situation is no different, and so the Court held today.

In deciding whether a particular defendant warrants a death sentence in light of the mix of aggravating and mitigating circumstances, there is no meaningful difference for purposes of appellate reweighing between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. Both involve weighing, and the Court’s decision in Clemons ruled that appellate tribunals may perform a “reweighing of the aggravating and mitigating evidence.” Ibid. In short, a Clemons reweighing is a permissible remedy for an Eddings error.

Some states are giving up on capital punishment–even though it is the only just penalty for the very worst murders–because the process takes too long and too seldom ends in execution of the thoroughly deserved sentence. Clemons reweighing could fix a lot of those problems. A great deal of post-conviction litigation in capital cases consists of claims that some marginally relevant mitigating evidence, often with no connection to the crime, was erroneously omitted from the sentencing process. Allowing the state collateral review court to say “even assuming that was an error, the aggravating still outweighs the mitigating, and the sentence is still proper” would go a long way toward mooting those claims relatively early in the process.