Harris v. United States
122 S.Ct.
2406 (June 24, 2002)Apprendi v. New Jersey, 530 U.S. 466 (2000) does not preclude a
judge from making factual-findings that result in a mandatory minimum
sentence if the sentence imposed is within the range of punishment
authorized by the jury’s findings.
Justice Kennedy announced the judgment of the Court, and
wrote the opinion for the Court on several points.
William Joseph Harris was charged with violating federal
drug and firearm laws, including 18 U.S.C. § 924(c)(1)(A), which
provides in relevant part:
"[A]ny person who, during and in relation to any crime
of violence or drug trafficking crime ... uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or drug
trafficking crime--
"(i) be sentenced to a term of imprisonment of not less
than 5 years;
"(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
"(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years."
The Government assumed that this statute defined a
single crime and that a brandishing allegation was a sentencing factor
to be decided by the judge after the trial. Therefore, no reference to
brandishing or subsection (ii) was included in the indictment.
At a bench trial, Harris was convicted of the charges. A
presentence report then recommended that he be given the 7-year minimum
because he had brandished the firearm. Harris objected, arguing that
brandishing was a separate offense for which he had neither been
indicted nor convicted. The district court rejected this interpretation
of the statute and sentenced Harris to seven years in prison after
finding by a preponderance of the evidence that Harris had indeed
brandished a firearm.
On appeal, Harris contended that if the brandishing
allegation was considered a sentencing factor as a statutory matter, the
statute was unconstitutional under Apprendi v. New Jersey, 530
U.S. 466 (2000). The Fourth Circuit Court of Appeals rejected the
argument. Agreeing with every other circuit to address the issue, it
found that brandishing was a sentencing factor. As for the
constitutional argument, the appeals court concluded it was foreclosed
by McMillan v. Pennsylvania, 477 U.S. 79 (1986). Certiorari was
granted.
A majority of the Supreme Court is in agreement on the
statutory construction question, finding that the brandishing provision
is a sentencing factor rather than an element of an offense. (Kennedy,
with Rehnquist, O’Connor, Scalia and Breyer.)
A plurality of the Court (Kennedy with Rehnquist,
O’Connor and Scalia) concludes that Apprendi does not preclude
judicial fact-finding in relation to mandatory minimums.
"The factual finding in Apprendi extended the
power of the judge, allowing him or her to impose a punishment exceeding
what was authorized by the jury. The finding in McMillan restrained
the judge's power, limiting his or her choices within the authorized
range. It is quite consistent to maintain that the former type of fact
must be submitted to the jury while the latter need not be.
"Read together, McMillan and Apprendi mean
that those facts setting the outer limits of a sentence, and of the
judicial power to impose it, are the elements of the crime for the
purposes of the constitutional analysis. Within the range authorized by
the jury's verdict, however, the political system may channel judicial
discretion--and rely upon judicial expertise--by requiring defendants to
serve minimum terms after judges make certain factual
findings."
Justice O’Connor writes a concurring opinion. While she
continues to believe that Apprendi and Jones v. United
States, 526 U.S. 227 (1999), were wrongly decided, she also
concludes that Harris’ argument is unavailing even assuming the validity
of Apprendi and Jones. Therefore, she joins Justice
Kennedy’s opinion in its entirety.
Justice Breyer joins in the judgment, and joins in the
opinion to the extent it holds that Apprendi does not apply to
mandatory minimums. In his concurring opinion, he explains that he is
unpersuaded by the plurality’s attempt to distinguish Apprendi,
but is also unwilling at this juncture to accept its rule given his
belief that "extending Apprendi to mandatory minimums would have
adverse practical, as well as legal, consequences . . .."
Breyer clarifies that he is not suggesting that he
approves of mandatory minimum sentences. In fact, he believes that
"[m]andatory minimum statutes are fundamentally inconsistent with
Congress' simultaneous effort to create a fair, honest, and rational
sentencing system through the use of Sentencing Guidelines." However, in
Breyer’s view, application of Apprendi to mandatory minimums
would not result in their disuse. Instead, he speculates that it would
simply result in some defendants feeling compelled to enter into
pretrial stipulations with the prosecution concerning facts relevant to
sentencing enhancements in order to avoid exposing the jury to
enhancement defenses that may appear to conflict with the defense to the
charged offense. Thus the extension of Apprendi to mandatory
minimum sentences would have the practical adverse effect of
transferring the fact-finding function from the judge to the
prosecution.
Another adverse consequence of extending
Apprendi, according to Breyer, is that "Congress' otherwise broad
constitutional authority to define crimes through the specification of
elements, to shape criminal sentences through the specification of
sentencing factors, and to limit judicial discretion in applying those
factors in particular cases" would be further diminished.
Justice Thomas dissents, joined by Justices Stevens,
Souter and Ginsburg. Thomas does not believe that Apprendi and
McMillan can be reconciled. He therefore concludes that
McMillan should be overruled. Thomas explains:
"The fact that a defendant brandished a firearm
indisputably alters the prescribed range of penalties to which he is
exposed under 18 U.S.C. § 924(c)(1)(A). Without a finding that a
defendant brandished or discharged a firearm, the penalty range for a
conviction under § 924(c)(1)(A)(i) is five years to life in prison. But
with a finding that a defendant brandished a firearm, the penalty range
becomes harsher, seven years to life imprisonment. § 924(c)(1)(A)(ii).
And if the court finds that a defendant discharged a firearm, the range
becomes even more severe, 10 years to life. § 924(c)(1)(A)(iii). Thus,
it is ultimately beside the point whether as a matter of statutory
interpretation brandishing is a sentencing factor, because as a
constitutional matter brandishing must be deemed an element of an
aggravated offense. See Apprendi, at 483, n. 10 (‘[F]acts that
expose a defendant to a punishment greater than that otherwise legally
prescribed were by definition 'elements' of a separate legal
offense’)."
Thomas’ review
of actual sentencing practices bolsters his conclusion that "facts that
trigger an increased mandatory minimum sentence warrant constitutional
safeguards." While a trial judge is permitted to impose a 7-year
sentence for the crime at issue in this case even without a finding of
brandishing, in fact the sentence imposed in non-brandishing cases
appears to be almost uniformly five years.
Ring v.
Arizona
122 S.Ct.
2428 (June 24, 2002) The
Supreme Court, 7-2, overrules Walton v.
Arizona, 497 U.S. 639 (1990), and holds that "[c]apital defendants .
. . are entitled to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment."
Justice
Ginsburg wrote the opinion for the Court, which was joined by Justices
Stevens, Scalia, Kennedy, Souter and Thomas. Justice Breyer concurred in
the judgment.
Timothy Ring
was convicted by an Arizona jury of a murder occurring in the course of
a robbery. The jury was unable to reach agreement concerning the charge
that the killing was premeditated. As required by state law, a separate
sentencing hearing was conducted by the trial judge. A death sentence,
the maximum penalty for first degree murder, was not possible unless the
trial judge found the existence of at least one statutory aggravating
factor. Relying on testimony from an accomplice who appeared only at the
sentencing phase, the trial judge found that Ring was the actual
shooter, and that he had been a major participant in the robbery. The
trial judge further found the existence of two statutory aggravating
factors: (1) killing for pecuniary gain; and (2) killing in an
especially heinous, cruel or depraved manner. After concluding that the
mitigating circumstance of a "minimal" criminal record did not call for
leniency, the trial judge sentenced Ring to death.
On appeal,
Ring argued that Arizona's capital sentencing scheme violates the Sixth
and Fourteenth Amendments to the U.S. Constitution because it entrusts
to a judge the finding of a fact that raises the defendant's maximum
penalty. In support of his argument, he pointed to Jones v. United States, 526 U.S. 227 (1999) and
Apprendi v. New Jersey, 530 U.S. 466 (2000).
The State responded that Arizona’s scheme was upheld in Walton, and the Court in Apprendi had stated that Walton remained good law.
The Arizona
Supreme Court looked to how Walton was
distinguished in Apprendi and concluded that
the majority in Apprendi misapprehended how
the Arizona capital scheme works. The Apprendi majority had described the Arizona
system as one requiring judges, after a jury determination that the
defendant committed a capital crime, to find specific aggravating
factors before imposing a sentence of death, rather than a system
permitting a judge to determine the existence of a factor which makes a
crime a capital offense. The Arizona Supreme Court described state law
as precluding a sentence of death unless the trial judge makes a factual
finding that a statutory aggravator exists. Ring’s claim was
nevertheless rejected, despite the mischaracterization of Arizona law in
Apprendi, because the Arizona Supreme Court
felt it was bound by Walton until it was
overruled.
The Arizona
Supreme Court agreed with Ring’s argument that there was insufficient
evidence to support the depravity aggravator. The death sentence was
upheld after the state court reweighed the remaining aggravator against
the sole mitigator found by the trial court.
The Supreme
Court granted certiorari to resolve whether Apprendi and Walton
could be reconciled.
The Court
makes clear early in its decision that the sole issue raised by Ring was
whether the Sixth Amendment requires jury findings on the aggravating
circumstances as alleged against him, which did not involve prior
convictions. Thus, this case does not
involve a challenge to Almendarez- Torres v.
United States, 523 U.S. 224 (1998), which held that the fact of
prior conviction may be found by the judge even if it increases the
statutory maximum sentence. Nor does the Sixth Amendment argument
pressed by Ring include the right to jury findings on mitigating
factors, or on the ultimate determination on whether to impose a death
sentence. The authority of the Arizona Supreme Court to conduct
reweighing was also not challenged by Ring. Finally, there was no
contention that the indictment was constitutionally defective.
After
clarifying the limited nature of Ring’s constitutional challenge, the
Court turns to its decision in Walton. In
upholding the Arizona scheme, the Court characterized the aggravators as
mere sentencing factors, not elements of the offense. As such, they did
not require a jury determination. The Court drew some support for its
decision from Cabana v. Bullock, 474 U.S.
376 (1986). In Cabana, the Court ruled that
an appellate court was permitted to make the finding that a defendant
killed, attempted to kill, or intended to kill, as required for
imposition of the death penalty under Enmund v.
Florida, 458 U.S. 782 (1982). The Court reasoned that a jury
determination was unnecessary because the Enmund finding did not involve an element of
the capital crime, but rather simply placed a substantive limitation on
sentencing.
Walton
was revisited by the Court in Jones v. United States, 526 U.S. 227 (1999),
which held: "[U]nder the Due Process Clause of the Fifth Amendment and
the notice and jury trial guarantees of the Sixth Amendment, any fact
(other than prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt." Id., at 243,
n.6. To explain the ruling in Walton, the
Court characterized the finding of aggravating facts as relating to the
choice between a greater and lesser punishment, rather than a process of
raising the permissible sentencing range.
Walton
was again distinguished in Apprendi v. New Jersey, 530 U.S. 466 (2000).
The trial judge in Apprendi had made a
factual finding that triggered application of an enhancement which then
doubled the maximum authorized sentence. The Supreme Court held that the
defendant’s sentence violated his right to a jury determination on all
elements of the crime. It explained that the Sixth Amendment could not
be circumvented by characterizing something as a sentencing enhancement.
The dispositive question was not one of form, but rather of effect. The
Court ruled that if an increase in a defendant’s authorized punishment
was made contingent on the finding of a fact, that fact--no matter how
it was labeled by the State-- had to be found by a jury beyond a
reasonable doubt. Walton was not
inconsistent with this ruling, in the Court’s view, because the maximum
sentence allowable for first degree murder in Arizona was death.
Therefore, once the jury convicted the defendant of first degree murder,
the trial judge was permitted to make the sentencing
findings.
As noted
above, this interpretation of Arizona law was repudiated by the Arizona
Supreme Court in Ring’s case. In light of this definitive construction
of Arizona law, the Supreme Court finds that Walton cannot survive the reasoning of Apprendi. While Arizona does authorize a death
sentence for a first degree murder conviction, it is only in a formal
sense. Notably, the statute cross-references the section requiring
further factual findings by the trial court.
The
distinction made by the Court in Walton
between elements and sentencing factors has become untenable after Apprendi. The Court is unpersuaded by Arizona’s
argument that Apprendi should not extend to
capital cases because aggravating factors are specially required by the
Eighth Amendment, rather than offense elements chosen for inclusion by
the states. The Court observes other instances where it has required the
addition of an element to a crime’s definition in order to satisfy the
Constitution. See, e.g., United States v.
Lopez, 514 U.S. 549, 561-562 (1995) (addition of express
jurisdictional element necessary for gun offense in order to prevent
violation of Commerce Clause); Brandenburg v.
Ohio, 395 U.S. 444, 447 (1969) (per curiam) (State law barring
advocacy of use of force or law violation is invalid under the First
Amendment unless it is limited to advocacy directed to inciting or
producing imminent lawless action and is likely to incite or produce
such action); Lambert v. California, 355
U.S. 225, 229 (due process clause precludes convicting ex-felon of
failing to register his presence in municipality unless there is "actual
knowledge of the duty to register or proof of the probability of such
knowledge"). In each of those situations the Court believes the Sixth
Amendment would apply should the legislature respond to the Court’s
ruling by adding the element necessary to prevent the statute at issue
from violating a constitutional provision. It can see no reason to
differentiate capital crimes from others in this regard.
The Court is
also unpersuaded by Arizona’s defense that the judicial determination of
aggravating factors is a superior means of guaranteeing against the
arbitrary imposition of the death penalty. The Court responds: "The
Sixth Amendment jury trial right . . . does not turn on the relative
rationality, fairness, or efficiency of
potential factfinders." Ring, at *15. In
addition, the Court expresses some skepticism about Arizona’s claim that
judicial factfinding is superior to jury findings. The Court observes
that only four states other than Arizona entrust solely to the trial
court both capital sentencing factfinding and the ultimate sentencing
determination: Colorado, Idaho, Montana, and Nebraska.
Because Walton cannot be reconciled with Apprendi, Walton is
overruled "to the extent that it allows a sentencing judge, sitting
without a jury, to find an aggravating circumstance necessary for
imposition of the death penalty." Ring at *
16.
The Court does
not reach Arizona’s assertion that any error in this case was harmless
because the pecuniary gain finding was implicit in the jury’s conviction
of felony-murder. The Court leaves this for the Arizona Supreme Court to
pass on in the first instance.
Justice Scalia
writes a concurring opinion, joined by Justice Thomas.
Scalia begins
by observing that Arizona was prompted to add aggravating factors to its
capital sentencing scheme by the Court’s line of decisions beginning
with Furman v. Georgia, 408 U.S. 238 (1972).
In Scalia’s opinion, "that line of decisions had no proper foundation in
the Constitution." Ring at *17. Scalia
agrees with the Chief Justice’s interpretation of the Eighth Amendment,
which was set forth in a dissenting opinion in Gardner v. Florida, 430 U.S. 349, 371 (1977)
(Rehnquist, J., dissenting). According to this view the Eighth Amendment
is meant to bar particular punishments and does not relate to the
process by which the punishment is imposed.
While Scalia
does not believe that the Eighth Amendment does require aggravating
factors, he realizes the futility in attempting to discern which
aggravators are the by-products of Furman,
and which the States had already in place or would have added
irrespective of Furman based on a conclusion
that murder simpliciter is no longer deserving of a death sentence. The
former category should not implicate the Sixth Amendment, in Scalia’s
mind, while the latter clearly does.
Scalia also
notes what he sees as a "perilous decline" in the people’s traditional
belief in the right to a jury trial and states:
That decline
is bound to be confirmed, and indeed accelerated, by the repeated
spectacle of a man's going to his death because a judge found that an aggravating factor
existed. We cannot preserve our veneration for the protection of the
jury in criminal cases if we render ourselves callous to the need for
that protection by regularly imposing the death penalty without
it.
Ring
, at *19.
Based on these
considerations, he embraces the Court’s determination that the
aggravating factors at issue must be subject to the usual requirements
of the Constitution, i.e., found by a jury beyond a reasonable doubt.
Scalia closes
by criticizing the separate concurrence by Justice Breyer, who joins in
the judgment based on his belief that jury sentencing in capital cases
is mandated by the Eighth Amendment. Scalia explains that the Court’s
decision in this case is not about jury
sentencing, which is not constitutionally required, but instead about
finding aggravating factors which create death-eligibility. Scalia
concludes:
There is
really no way in which Justice Breyer can travel with the happy band
that reaches today's result unless he says yes to Apprendi. Concisely put, Justice Breyer is on
the wrong flight; he should either get off before the doors close, or
buy a ticket to Apprendi-land.
Justice
Kennedy concurs in the Court’s opinion. While he remains convinced that
Apprendi was wrongly decided, he concludes
that its approach must be implemented in a principled manner. He agrees
with the Court that Apprendi and Walton cannot stand together.
Justice Breyer
concurs in the Court’s judgment. He looks to the Court’s precedent
requiring States to apply special procedural safeguards in cases where
the death penalty is sought. Breyer then announces that he has come to
believe that one of the required safeguards is that a jury impose a
death sentence. In Breyer’s view, "the Eighth Amendment requires
individual jurors to make, and to take responsibility for, a decision to
sentence a person to death."
Justice
O’Connor dissents, joined by the Chief Justice. Although she agrees that
Apprendi and Walton are incompatible, she would resolve this
dilemma by overruling Apprendi. O’Connor
reiterates the reasons she dissented from Apprendi. She continues to believe that the
decision was without foundation. Further, she contends that Apprendi has had "a severely destabilizing
effect on our criminal justice system." In support of this assertion she
points to the high number of Apprendi-related claims being raised by
prisoners which has "caused an enormous increase in the workload of an
already overburdened judiciary." Ring at
*23. O’Connor predicts that the decision in this case will only add to
Apprendi’s pernicious effects. The five
states with the type of sentencing scheme condemned by the majority have
a combined 168 prisoners on death row. Each of these prisoners is likely
to now raise a challenge to the death sentence. O’Connor predicts that
many of the prisoners will be unsuccessful, either because of harmless
error analysis, or because they will be barred from taking advantage of
this case on federal collateral review. Nevertheless, the need for
courts to evaluate the claims will be burdensome. Further, O’Connor
suspects that death row inmates in Alabama, Delaware, Florida and
Indiana will seize on this decision given their hybrid sentencing
schemes in which the jury renders an advisory verdict but the judge is
the ultimate sentencer.
NOTE: On June
28, 2002, the Supreme Court granted the certiorari petitions in the
following cases, vacated the judgments, and remanded to the lower courts
for further consideration in light of Ring v. Arizona: Harrod v.
Arizona, No. 01-6821; Allen v. United States, No. 01-7310; Pandeli v.
Arizona, No. 01-7743; Sansing v. Arizona, No. 01-7837 .
That same day
the Supreme Court denied the following certiorari petitions which raised
Apprendi-based challenges to Alabama and Florida death penalty
procedures: Holladay v. Alabama, 00-10728; Mann v. Florida, 01-7092;
King v. Florida, 01-7804; Bottoson v. Florida, 01-8099; Card v. Florida,
01-9152; Hertz v. Florida, 01-9154; and Looney v. Florida, 01-9932.
Card, Hertz and Looney were petitions for writs of certiorari following
affirmance on direct appeal.
Atkins v. Virginia
122 S.Ct. 2242 (June 20, 2002) In a 6-3 ruling, the Supreme Court holds that
executing a mentally retarded offender constitutes cruel and unusual
punishment prohibited by the Eighth Amendment to the United States
Constitution.
Daryl Atkins
was convicted of capital murder and sentenced to death in Virginia. A
second sentencing hearing was ordered by the state supreme court due to
an error by the trial court. At the sentencing retrial, Atkins presented
expert testimony that he was mildly mentally retarded. The prosecution
rebutted with an expert who opined that Atkins was of "at least" average
intelligence. Atkins was again sentenced to death. On appeal, the state
supreme court relied on Penry v. Lynaugh, 492 U.S. 302 (1989), (Penry I) , in rejecting Atkins’ claim that his
mental retardation precluded a sentence of death. Two state court
justices dissented. They found the testimony of the prosecution expert
"incredulous as a matter of law," and that "the imposition of the
sentence of death upon a criminal defendant who has the mental age of a
child between the ages of 9 and 12 is excessive." Atkins v. Commonwealth, 534 S.E.2d 312, 394,
395-396 (Va. 2000).
The Supreme
Court granted certiorari in this case to revisit the issue it addressed
13 years earlier in Penry I.
Justice
Stevens writes for the Court, joined by Justices O’Connor, Kennedy,
Souter, Ginsburg and Breyer.
The Court
begins by observing that a claim of "excessive" punishment under the
Eighth Amendment is judged by currently prevailing standards. In order
to discern the guiding standards, the Court is informed by objective
evidence. In the end, however, the Constitution contemplates that the
Justices’ own judgment must be brought to bear on the Eighth Amendment
question. The Court, therefore, starts its analysis by looking to the
judgment of the legislatures that have addressed the suitability of
executing the mentally retarded, and then considers reasons for agreeing
or disagreeing with these judgments.
Back in 1989,
when the Court decided Penry I, only two
death penalty States barred execution of the mentally retarded. After Penry I, "state legislatures across the country
began to address this issue." In the ensuing years, sixteen death
penalty States enacted statutes exempting the mentally retarded from
execution.
Most
significant about this development, in the view of the Court, is not the
number of the states at issue, but instead "the consistency of the
direction of change." The Court notes:
"Given the
well-known fact that anticrime legislation is far more popular than
legislation providing protections for persons guilty of violent crime,
the large number of States prohibiting the execution of mentally
retarded persons (and the complete absence of States passing legislation
reinstating the power to conduct such executions) provides powerful
evidence that today our society views mentally retarded offenders as
categorically less culpable than the average
criminal."
Bolstering the
weight of this evidence is the fact that the votes in favor of banning
execution of the mentally retarded have been overwhelming in those
States that have addressed this issue. As for the States that have not
yet exempted the mentally retarded from the death penalty, the Court
points out that in practice such executions are uncommon. For example,
New Hampshire and New Jersey have had no post-Furman executions at all. Thus, there is
currently little need to pursue special protections for the mentally
retarded in those jurisdictions. As for the States that regularly employ
capital punishment and still permit the mentally retarded to be
executed, the Court finds notable that "only five have executed
offenders possessing a known IQ less than 70" since Penry I was decided. These facts lead the Court
to conclude: "The practice . . . has become truly unusual, and it is
fair to say that a national consensus has developed against it."
In a footnote,
the Supreme Court recounts evidence showing that the legislative
judgment it just discussed "reflects a much broader social and
professional consensus." Among those condemning the practice of
executing the mentally retarded are numerous professional organizations,
diverse religious communities, the world community, and the American
citizenry as shown through polling data.
To the extent
there is serious disagreement on the question of executing the mentally
retarded, the Supreme Court finds that it is only in determining which
defendants are in fact retarded. The Supreme Court leaves it to the
States to develop the appropriate ways to enforce the constitutional
restriction it announces in this case, noting that while the definitions
of mental retardation currently found in various statutes are not
identical, they generally conform to the clinical definitions of the
American Association of Mental Retardation and the American Psychiatric
Association. These definitions require subaverage intellectual
functioning, as well as significant limitations in adaptive skills that
became manifest before age 18.
The next
section of the Court’s decision explores the reasons for the national
consensus found above. While mentally retarded defendants "frequently
know the difference between right and wrong and are competent to stand
trial," they nevertheless "have diminished capacities to understand and
process information, to communicate, to abstract from mistakes and learn
from experience, to engage in logical reasoning, to control impulses,
and to understand the reactions of others." The Court’s death penalty
jurisprudence provides two reasons why such deficiencies should render
the mentally retarded exempt from execution.
First, the
Court finds a serious question whether the two permissible
justifications for capital punishment -- retribution and deterrence --
apply to mentally retarded offenders. As to retribution, the Court’s
narrowing jurisprudence severely limits the crimes for which the death
penalty may be imposed. The Court posits that "[i]f the culpability of
the average murderer is insufficient to justify the most extreme
sanction available to the State, the lesser culpability of the mentally
retarded offender surely does not merit that form of retribution."
Turning to deterrence, the cognitive and behavioral impairments of the
mentally retarded "make it less likely that they can process the
information of the possibility of execution as a penalty and, as a
result, control their conduct based upon that information." As for other
defendants, the deterrent effect of the death penalty would not be
lessened by exempting the mentally retarded.
A second
justification for the categorical ban on execution of the mentally
retarded is found by the Court. The Court believes that the reduced
capacity of mentally retarded offenders places them at risk of receiving
a death sentence "in spite of factors that may call for a less severe
penalty." Lockett v. Ohio, 438 U.S. 586, 605
(1978). To support this conclusion, the Court notes the possibility of
false confessions, a lesser ability to meaningfully assist counsel, the
likelihood of poor performance on the witness stand, and a demeanor
which may lead the jury to the unwarranted conclusion that the defendant
lacks remorse. In addition, "reliance on mental retardation as a
mitigating factor can be a two-edged sword that may enhance the
likelihood that the aggravating factor of future dangerousness will be
found by the jury." In short, "[m]entally retarded defendants in the
aggregate face a special risk of wrongful execution."
The Court’s
independent evaluation of the issue presented in this case provides it
with no reason to disagree with judgment of the legislatures that have
recently addressed the propriety of applying the death penalty to
mentally retarded offenders. The Court therefore holds that execution of
the mentally retarded is an excessive punishment that is prohibited by
the Eighth Amendment.
The case is
remanded to the Virginia Supreme Court for further proceedings not
inconsistent with this decision.
Chief Justice
Rehnquist dissents, joined by Justices Scalia and Thomas. He criticizes
the majority decision for placing "weight on foreign laws, the views of
professional and religious organizations, and opinion polls in reaching
its conclusion." According to Rehnquist, such reliance is "antithetical
to considerations of federalism." He independently attacks use of the
opinion polls on the ground that there is insufficient information to
show their reliability.
Rehnquist
takes the position that the sole indicators the Court should look to in
order to ascertain current societal standards are: (1) the work product
of the legislatures; and (2) data concerning actions by sentencing
juries.
Justice
Scalia’s dissenting opinion is joined by the Chief Justice, as well as
Justice Thomas. Scalia takes the position that the decision in this case
rests upon the personal views of a majority of the Supreme Court. He is
unable to find the national consensus identified by the majority. He
points out, among other things, that less than one-half of the death
penalty States currently exempt the mentally retarded from execution. In
addition, because only a minority of the States with such an exemption
chose to make the rule retroactive, the majority of States adopting
exemptions could not have been issuing a "statement of absolute moral
repugnance" to the practice of executing the mentally retarded. Scalia
further observes that the exemptions from execution for mentally
retarded offenders are relatively new, thereby providing a poor
foundation for a sweeping constitutional principle. Scalia also
vehemently disagrees with the majority’s conclusion that the "diminished
capacities" of the mentally retarded renders the death penalty
excessive.
Carey v.
Saffold
122 S.Ct. 2134 (June 17, 2002) This case addressed when a state post-conviction
application is "pending" for purposes of tolling the one-year statute of
limitations for filing federal habeas corpus petitions. See 24 U.S.C. § 2244.
In a decision
written by Justice Breyer, and joined by Justices Stevens, O’Connor,
Souter, and Ginsburg, the Supreme Court first held that the term
"pending," as used in § 2244(d)(2), includes the time period between a
lower state court’s ruling on a post-conviction application and the
filing of a notice of appeal to the higher state court. Thus, until a
state post-conviction application "has achieved final resolution through
the State’s post-conviction procedures, . . it remains ‘pending.’"
The Court next
addressed how the term "pending" should be applied in California which
does not have a standard appellate review procedure for post-conviction
petitions. In California, there is no "appeal" possible from the denial
of a state habeas petition by a trial court. Instead, the petitioner
must file an original petition in the appellate court. If an
intermediate appellate court denies a habeas petition, a California
prisoner has the choice of either filing a petition for review or an
original habeas petition in the California Supreme Court. While there is
a deadline for a petition for review, there is no filing deadline for
habeas petitions in California. Rather, the timeliness of each filing is
determined by a "reasonableness" standard.
After
reviewing state law, and noting the fact that the tolling provision at
issue is designed to permit exhaustion of state remedies, the Supreme
Court concluded that "California’s system functions in ways sufficiently
like other state systems of collateral review to bring intervals between
a lower court decision and a filing of a new petition in a higher court
within the scope of the statutory word ‘pending.’" This is true even
where a petitioner chooses to file an original petition in the state
supreme court rather than utilize the petition for review option. In so
ruling, the majority makes clear that the rule it is applying to
original writs in California does not apply
to original writs in states that have an appeal process for
post-conviction petitions and that reserve the highest state court’s
original writ jurisdiction to "extraordinary" circumstances.
Finally, the
Court turned to the specifics of Saffold’s case. Saffold filed an
original habeas petition in the state supreme court 4 ½ months after the
intermediate appellate court denied the petition that had been filed in
that court. Saffold attempted to persuade the state supreme court that
he had been diligent by explaining that the court of appeal had failed
to notify him of its ruling for several months and that he had filed in
the highest court within days of receiving notice of the lower court’s
ruling. The California Supreme Court denied Saffold’s habeas petition
both on the merits and for "lack of diligence."
The Supreme
Court found that if the "lack of diligence" holding was clearly related
to the 4 ½ month delay, Saffold’s habeas petition would not have been
"pending" during this period. This is true despite the state court’s
alternative merits ruling, and irrespective of whether the state
timeliness rule is intertwined with federal law.
On the record
before it, however, the Supreme Court was unable to determine whether
the "lack of diligence" ruling by the state supreme court referred to
the 4 ½ month gap in filing, or instead to Saffold’s nearly five year
delay in initiating state habeas proceedings after his conviction was
affirmed on direct appeal. If it was the latter delay that prompted the
"lack of diligence" holding, that would not prevent the petition from
being "pending" for purposes of tolling during the 4 ½ filing gap.
The Supreme
Court remanded to the Ninth Circuit Court of Appeals to decide the
meaning of the state court’s "lack of diligence" ruling. In remanding,
the Supreme Court left "to the Court of Appeals the decision whether it
would be appropriate to certify a question to the California Supreme
Court for the purpose of seeking clarification in this area of state
law."
Justice
Kennedy, joined by the Chief Justice and Justices Scalia and Thomas,
dissented. In Kennedy’s view, the plain language of the federal statute
of limitations precludes the majority’s determination that a habeas
petition can be deemed "pending" after its denial and prior to the
filing of a new original petition in a different court. Kennedy also
accused the majority of misconstruing California law. While the majority
understood California law as contemplating the filing of original
petitions, Kennedy pointed to case law indicating that a petition for
review is the "preferred" practice when dealing with a denial of a
habeas petition by an intermediate appellate court. Kennedy also took
issue with the majority’s contention that California’s writ procedure is
unique. Kennedy asserted that state prisoners outside of California
would now attempt to circumvent a failure to file a timely state
post-conviction appeal by filing an original writ petition in state
court. Should that petition be denied without comment, the prisoner
would be armed with an argument that his post-conviction application was
pending from its initial filing until the denial of the writ
petition.
Kennedy also
reads the majority opinion as placing the burden on federal courts to
assess whether petitioners exercised due diligence in their state court
filing in cases where the state court failed to make a specific finding
of undue delay. This will, in Kennedy’s view, both increase federal
litigation, and create unnecessary uncertainty for state prisoners who
cannot know whether the federal statute of limitations is running while
they prepare their state habeas petitions.
Finally,
addressing the specifics of Saffold’s case, Kennedy does not believe
that the ambiguity in the state court’s habeas denial should benefit
Saffold. According to Kennedy, if the "lack of diligence" ruling was
meant to signify that Saffold waited too long in initiating state habeas
proceedings in the first instance, then none of his state petitions were
"properly filed" and none of them tolled the limitation period. In
reaching this conclusion, Kennedy cites to Artuz v. Bennett, 531 U.S. 4, 8
(2000).
McKune v. Lile
122 S.Ct.
2017 (June 10, 2002) A majority
of the Supreme Court rules that the adverse consequences suffered by a
prisoner who refused to make admissions as required for participation in
a prison treatment program were not so severe as to constitute
compulsion for purposes of the Fifth Amendment’s privilege against
self-incrimination. Justice Kennedy wrote a plurality opinion joined by
Chief Justice Rehnquist, Justice Scalia and Justice Thomas. Justice
O’Connor concurred in the judgment. Justice Stevens filed a dissenting
opinion joined by Justice Souter, Justice Ginsburg and Justice
Breyer.
This case
arose in the context of a § 1983 civil rights action filed by Robert G.
Lile, a convicted sex offender incarcerated in Kansas. A few years
before his scheduled release, Lile was ordered to participate in a
Sexual Abuse Treatment Program. Part of this program mandated completion
of a form in which the inmate discussed and accepted responsibility for
the commitment offense. The inmate was further required to provide a
complete sexual history, regardless of whether it included uncharged
sexual offenses. The information provided by the inmate was not
privileged and could be used in a future prosecution.
Lile was told
that if he refused to participate in this program, his privilege status
would be reduced. In addition, he would be transferred to a
maximum-security unit where movement was more limited and he would have
to live in a four-person, rather than a two-person, cell. Lile refused
to participate in the program, arguing that the required disclosures
violated his Fifth Amendment right against self-incrimination. He then
filed a federal civil rights action seeking to enjoin the prison from
penalizing him for invoking his constitutional rights. The Tenth Circuit
Court of Appeals agreed with Lile’s contention that the Kansas prison
regulation violated the Fifth Amendment. See 224 F.3d 1175 (10th Cir.
2000).
The Supreme
Court reverses the lower court. In Kennedy’s plurality opinion, he
begins by discussing the legitimate penological objective served by the
treatment program. He then recounts the reasons why offering use
immunity to inmates, which the Tenth Circuit found would obviate any
self-incrimination issues, could detract from the program’s
rehabilitative purposes.
Kennedy next
finds that Lile’s status as a prisoner is an essential consideration in
the Court’s Fifth Amendment analysis. While not relying fully on Sandin
v. Conner, 515 U.S. 472 (1995), which sets the test for due process
challenges to prison conditions, Kennedy finds that "the Sandin
framework provides a reasonable means for assessing whether the response
of prisoner administrators to correctional and rehabilitative
necessities are so out of the ordinary that one could sensibly say they
rise to the level of unconstitutional compulsion." Kennedy
explains:
"Sandin and
its counterparts underscore the axiom that a convicted felon’s life in
prison differs from that of an ordinary citizen. In the context of a
legitimate rehabilitation program for prisoners, those same
considerations are relevant to our analysis. The compulsion inquiry must
consider the significant restraints already inherent in prison life and
the State’s own vital interest in rehabilitation goals and procedures
within the prison system. A prison clinical rehabilitation program,
which is acknowledged to bear a rational relation to a legitimate
penological objective, does not violate the privilege against
self-incrimination if the adverse consequences an inmate faces for not
participating are related to program objectives and do not constitute
atypical and significant hardships in relation to the ordinary incidents
of prison life."
Kennedy points
out that Lile’s refusal to participate did not result in extended
incarceration. Nor did it affect his eligibility for good-time credits
or parole. Further, the transfer to a different unit was not intended as
punishment, but instead was necessary in order to provide room for
inmates willing to take part in the program. Looking again to prison due
process jurisprudence, Kennedy finds that the loss of certain privileges
by Lile is de minimis harm that fails to create an unconstitutional
compulsion.
In concluding
that the Fifth Amendment is not violated by the Kansas program, Kennedy
makes note of numerous cases where the existence of potentially adverse
consequences from a decision to remain silent did not establish a
violation of the self-incrimination clause. See, e.g., McGautha v.
California, 402 U.S. 183 (1971) (statements made by a capital defendant
to mitigate his responsibility and avoid a death sentence could be used
to establish guilt); Jenkins v. Anderson, 447 U.S. 231 (1980) (criminal
defendant’s exercise of his Fifth Amendment privilege prior to arrest
may be used to impeach his credibility at trial); Baxter v. Palmigiano,
425 U.S. 308 (1976) (Supreme Court refuses to extend Griffin v. California to silence at prison
disciplinary hearing); Minnesota v. Murphy, 465 U.S. 420 (1984) (no
Fifth Amendment violation where silence during interview with probation
officer could result in return to prison, but adherence to probation
condition requiring truthful disclosure meant admitting to capital
murder); Ohio Adult Parole Authority v. Woodford, 523 U.S. 272 (1998)
(death row inmate could be forced to choose between incriminating
himself at his clemency interview and having adverse inferences drawn
from his silence).
Kennedy is
unpersuaded by Lile’s argument that his case is distinguishable from
those discussed above on the ground that his penalty follows
automatically from a decision to remain silent. In the other cases, a
penalty would not necessarily result from silence. While Kennedy
believes "the automatic nature of the consequence may be a necessary
condition to finding unconstitutional compulsion," it is not in itself
enough. Rather, the severity of the consequences is a critical component
in assessing compulsion. Nor is Woodford distinguishable on the ground
that the inmate there made the choice to participate in clemency
proceedings, while the treatment program in Lile’s case was mandatory.
"Whether the inmates are being asked or ordered to participate depends
entirely on the consequences of their decision not to do so." Given the
relatively minimal consequences to Lile for his decision to forego the
treatment program, the choice he has been given does not rise to the
level of compulsion.
Finally,
Kennedy states that Lile is mistaken in relying on a distinction between
rewards and penalties; "The answer to the question whether the
government is extending a benefit or taking away a privilege rests
entirely in the eye of the beholder."
Justice
O’Connor concurs in the judgment. She expresses agreement with Justice
Steven’s contention that "the Fifth Amendment compulsion standard is
broader than the ‘atypical and significant hardship’ standard [the
Court] has adopted for evaluating due process claims in prison."
O’Connor looks instead to the case law concerning penalties imposed upon
a person as a result of the failure to incriminate himself. E.g.,
Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation of
City of New York, 392 U.S. 280 (1968)( loss of professional license);
Spevack v. Klein, 385 U.S. 511 (1967) (ineligibility to receive
government contracts); Lefkowitz v. Turley, 414 U.S. 70 (1973) (loss of
right to participate in political associations and to hold public
office). This precedent "establish[es] that certain types of penalties
are capable of coercing incriminating testimony." Applied here, O’Connor
does not believe that the penalties facing Lile "are serious enough to
compel him to be a witness against himself."
O’Connor does
address Lile’s claim that the transfer to a maximum-security area of the
prison places him in a more dangerous situation. Because it is Lile’s
burden to establish compulsion, and he did not show how great the danger
actually was, O’Connor is unconvinced on this record that the threat of
transfer would compel self-incrimination.
O’Connor next
rejects Stevens’ argument that the penalties imposed on Lile are
necessarily coercive because they are the same penalties that are
imposed by the prison for disciplinary violations. Again, looking to the
penalties themselves, O’Connor does not find them of sufficient severity
to compel self-incrimination. On the other hand, she also rejects the
plurality’s suggestion that the penalties imposed on Lile could rise to
the level of those in cases like McGautha, Woodard, and Bordenkircher v.
Hayes, 434 U.S. 357 (1978) (plea bargaining does not violate the Fifth
Amendment privilege against self-incrimination). The potential penalties
in these cases include longer incarceration and even execution. In
O’Connor’s view, "the imposition of such outcomes as a penalty for
refusing to incriminate oneself would surely implicate a ‘liberty
interest.’" In order to properly distinguish these cases from the
penalty cases discussed above, O’Connor posits a theory that
"recognize[s] that it is generally acceptable to impose the risk of
punishment, however great, so long as the actual imposition of such
punishment is accomplished through a fair criminal process." She sees a
difference between forcing defendants within the criminal process to
accept consequences from their choices, and "imposing penalties for the
refusal to incriminate onself that go beyond the criminal process and
appear, starkly, as government attempts to compel testimony."
O’Connor
admits, however, that even this explanation of the privilege fails to
fully account for all of the Court’s precedent in this area. Further
complication comes from the question of whether the denial of benefits
and the imposition of burdens should be analyzed differently in this
area. This question is particularly important given the Sentencing
Guidelines, which arguably offer convicted defendants the benefit of a
reduced sentence in exchange for acceptance of responsibility.
Although
troubled by the plurality’s failure to set forth a comprehensive theory
of the Fifth Amendment privilege against self-incrimination in this
case, she nevertheless joins in the judgment because: (1) "this case
indisputably involves burdens rather than benefits"; and (2) she does
not believe "the penalties assessed against respondent in response to
his failure to incriminate himself are compulsive on any reasonable
test."
In the dissent
by Justice Stevens, he characterizes the question before the Court as
"whether the State may punish an inmate’s assertion of his Fifth
Amendment privilege with the same mandatory sanction that follows a
disciplinary conviction for an offense such as theft, sodomy, riot,
arson, or assault." Before this decision, "the Court has never
characterized a threatened harm as ‘a minimal incentive.’" Further,
never before has the Court held "that a person who has made a valid
assertion of the privilege may nevertheless be ordered to incriminate
himself and sanctioned for disobeying such an order." While Stevens
takes issues with the plurality’s contention that the sanctions at issue
are not severe, he ultimately finds that even if they are minimal this
cannot justify the "evisceration of a constitutional right."
Horn v. Banks
122 S.Ct. 2147 (June 17, 2002)(per
curiam) In this Per Curiam decision the Supreme Court
reverses the grant of habeas relief by the Third Circuit Court of
Appeals, which was based on a violation of Mills v. Maryland, 486 U.S.
367 (1988), and remands for consideration of the Warden’s Teague v. Lane
defense. The Supreme Court rejects the appeals court’s conclusion that
Teague is irrelevant in a post-AEDPA case where new Supreme Court
precedent was in fact considered and applied by the state court in
post-conviction proceedings. Instead, the Supreme Court rules that "in
addition to performing any analysis required by AEDPA, a federal court
considering a habeas petition must conduct a threshold Teague analysis
when the issue is properly raised by the state." (There is currently a
split in the circuits on the question of whether Teague bars retroactive
application of Mills. The Fourth and Sixth Circuits have ruled that it
does not. The Fifth and Eighth Circuits have come to a contrary
conclusion.)
Banks was
sentenced to death in Pennsylvania for twelve murders. His jury had been
instructed that a sentence of death was mandatory "if the jury
unanimously finds at least one aggravating circumstance and no
mitigating circumstance, or if the jury unanimously finds one or more
aggravating circumstances which outweigh any mitigating circumstance or
circumstances." The verdict form required the jury to check a box
indicating that it had "unanimously" found either: (1) at least one
aggravating circumstance and no mitigating circumstances; or (2) one or
more aggravating circumstances which outweigh any mitigating
circumstance or circumstances. The jury checked the second
box.
After Banks’
convictions and death sentences were affirmed on appeal, the United
States Supreme Court issued its decision in Mills v. Maryland. In Mills
the Supreme Court held that the Constitution prohibits a state from
requiring that jurors unanimously agree on the existence of a mitigating
circumstance before they are permitting to consider that circumstance in
determining the sentence.
Subsequently,
in state post-conviction proceedings, Banks raised a Mills challenge to
his sentencing instructions and verdict form. The Pennsylvania Supreme
Court found the claim without merit. In its view, neither the
instructions nor the verdict form were "impermissibly suggestive of a
unanimity requirement with respect to mitigating circumstances."
Commonwealth v. Banks, 656 A.2d 467, 471 (1995).
Banks then
raised the Mills claim in a petition for writ of habeas corpus filed in
the federal district court. The claim was denied based upon the district
court’s application of the new limitation on habeas relief contained in
§ 2254(d). This ruling rendered it unnecessary for the district court to
address the question of whether Mills could be applied retroactively to
Banks’ case.
The Third
Circuit reversed, holding that Banks was entitled to relief on the Mills
claim. As for the retroactivity analysis mandated by Teague, the appeals
court concluded it did not govern the analysis in this post-AEDPA case
because the federal court’s sole focus was on "the reasoning and
determination of the Pennsylvania Supreme Court," which had not ruled on
whether Mills could apply retroactively. Banks v. Horn, 271 F.3d 527,
541 and n. 13 (3rd Cir. 2001). In other words, because the state court
had considered and applied Mills, the only question before the federal
court was whether the state court’s ruling on the Mills claim should be
disturbed under the AEDPA standards. Relying on Mills and Boyde v.
California, 494 U.S. 370 (1990), the Third Circuit went on to conclude
that the Pennsylvania Supreme Court unreasonably applied federal law.
The Supreme
Court holds that the Third Circuit committed "a clear error by failing
to perform a Teague analysis" since the Teague defense was invoked by
the State below. The case is remanded for further proceedings consistent
with this decision.
Mickens v. Taylor
122 S. Ct. 1237 (Mar. 27, 2002)
In a 5 to 4 decision, the
Court addressed "what a defendant must show in order to demonstrate a
Sixth Amendment violation where the trial court fails to inquire into a
potential conflict of interest about which it knew or reasonably should
have known." The majority held that a defendant in such circumstances
must meet the test of Cuyler v. Sullivan, 446 U.S. 335 (1980), which
requires showing an actual conflict of interest which adversely affected
his representation.
Mickens’ lead
counsel at his capital trial had previously represented the victim whom
Mickens was charged with murdering. The lawyer’s representation of the
victim occurred about ten days before the victim’s death and involved
one 15 to 30 minute meeting. The judge who had appointed the lawyer to
represent the victim also appointed the same lawyer to represent
Mickens. Counsel never revealed the prior representation, and the judge
did not inquire about a potential conflict.
The Court
examined its conflict of interest cases. In Holloway v. Arkansas, 435
U.S. 475 (1978), the Court applied an automatic reversal rule where
defense counsel was forced to represent codefendants over timely
objection. In Cuyler v. Sullivan, however, the Court declined to apply
an automatic reversal rule where there was no objection to multiple
representation, instead requiring the defendant to show that "a conflict
of interest actually affected the adequacy of his representation."
Sullivan also required a trial court to inquire into a potential
conflict only when "the trial court knows or reasonably should know that
a particular conflict exists." The Court emphasized that a "particular"
conflict is not a "vague, unspecified possibility of conflict." In Wood
v. Georgia, 450 U.S. 261 (1981), the record raised the possibility of a
conflict sufficient to require an inquiry from the trial court, and the
Supreme Court remanded the case for a determination of "whether the
conflict of interest that this record strongly suggests actually
existed."
The Court
rejected Mickens’ argument that the remand instruction in Wood
established that a trial judge’s failure to inquire into a potential
conflict relieved the defendant of the burden of showing an adverse
effect. The Court stated that Wood’s remand instruction was "shorthand"
for the Sullivan test.
The Court also
found Mickens’ arguments made "little policy sense" because the trial
court’s awareness of a potential conflict does not make an adverse
effect more likely or otherwise render the verdict unreliable, because a
trial judge’s failure to inquire does not make it more difficult for a
reviewing court to assess conflict and effect, and because automatic
reversal is not an appropriate method of enforcing Sullivan’s duty to
inquire.
While
emphasizing that this case addresses only the effect of a trial judge’s
failure to inquire upon Sullivan’s adverse effect requirement, the Court
noted that the Courts of Appeals have applied Sullivan to a broad range
of ethical conflicts. The Court indicated that Sullivan does not support
"such expansive application." However, the extent of Sullivan’s reach
was not presented in this case: "In resolving this case on the grounds
on which it was presented to us, we do not rule upon the need for the
Sullivan prophylaxis in cases of successive representation. Whether
Sullivan should be extended to such cases remains . . . an open
question."
Lee v.
Kemna
122 S. Ct. 877 (Jan. 22, 2002) The Court considered whether a state procedural bar
was adequate to foreclose federal habeas corpus review of Lee’s claim
that the Missouri trial court denied him due process when it refused to
grant an overnight continuance of his trial so that he could locate
subpoenaed but suddenly missing alibi witnesses. The Missouri Court of
Appeals held the claim procedurally barred because the continuance
motion did not comply with a state rule requiring the motion to be in
writing accompanied by an affidavit and with another state rule setting
forth the showing required to obtain a continuance based on the absence
of witnesses.
The Supreme
Court held that the state rules were not adequate to preclude federal
habeas review because Lee’s "asserted right to defend should not depend
on a formal ‘ritual . . . [that] would further no perceivable state
interest.’" (quoting Osborne v. Ohio, 495 U.S. 103, 124 (1990)). When he
moved for the continuance, Lee testified under oath that the missing
witnesses had traveled voluntarily from California to Missouri, were
subpoenaed when they arrived in Missouri, had been present in the
courthouse that morning, and would not be leaving for California for
another two days. Lee also testified he had unsuccessfully attempted to
locate the witnesses. The trial judge denied the continuance motion,
saying he was not available after that day. Neither the prosecutor nor
the judge cited the state rules as a reason for denying the motion. The
state did not rely on the rules until Lee’s direct appeal and appeal
from the denial of postconviction relief were heard by the Missouri
Court of Appeals.
The Supreme
Court ruled that this was one of the "exceptional cases in which
exhorbitant application of a generally sound rule renders the state
ground inadequate to stop consideration of a federal question." The
Court rested this ruling on three grounds. First, the trial judge’s
reason for denying the continuance motion could not have been overcome
by compliance with the state rules. Second, no Missouri caselaw requires
flawless compliance with the state rules in the unique circumstances of
Lee’s case. Third, Lee substantially complied with the rule setting
forth the showing required to obtain a continuance, and the written
motion requirement is not absolute. The Court remanded the case for
merits consideration of Lee’s due process claim.
Kelly v. South
Carolina
122 S. Ct. 726 (Jan. 9, 2002) In a 5 to 4 decision in this capital case, the
Supreme Court reversed the South Carolina Supreme Court’s decision that
Simmons v. South Carolina, 512 U.S. 154 (1994), did not apply to Kelly’s
case. At his capital sentencing proceeding, Kelly requested that the
jury be instructed that if he received a life sentence, he would be
ineligible for parole. The trial court denied the instruction, ruling
that the state was not arguing future dangerousness. On appeal, the
South Carolina Supreme Court upheld denial of the instruction for two
reasons: (1) state law provided the jury with a third sentencing option
and (2) future dangerousness was not at issue.
As to whether
the jury had a third sentencing option, the Supreme Court relied upon
Shafer v. South Carolina, 532 U.S. 36 (2001). Although in some
circumstances, South Carolina law allows a sentence less than life for
capital murder, the jury only makes a recommendation when it finds an
aggravating circumstance, and the jury’s only options when it makes a
recommendation are death or life without parole.
As to whether
future dangerousness was at issue, the Supreme Court found the state
court’s ruling unsupported by the record. The state supreme court
accurately posed the legal issue--whether the prosecutor’s evidence or
argument placed future dangerousness in issue--but erred on the facts.
The prosecutor presented evidence that Kelly had weapons in prison and
participated in escape attempts. The state court interpreted Simmons as
involving future danger "if released from prison" and reasoned that
evidence regarding weapons and escape attempts went only to Kelly’s
future behavior in prison. However, the Supreme Court saw this evidence
as raising "a strong implication of ‘generalized . . . future
dangerousness.’" (quoting Simmons). The Court explained, "Evidence of
future dangerousness under Simmons is evidence with a tendency to prove
dangerousness in the future; its relevance to that point does not
disappear merely because it might support other inferences."
The Supreme
Court also found that the prosecutor’s argument "placed the case within
the four corners of Simmons." The prosecutor’s argument in which he
hoped jurors would never again be this close to a person such as Kelly
implied that Kelly would someday be released from prison--the only way
jurors could ever be close to him. The prosecutor’s comparison of Kelly
to a notorious serial killer implied that Kelly "is a vicious predator
who would pose a continuing threat to the community," as did a similar
argument in Simmons.
Finally, the
Supreme Court rejected the state’s argument that no parole ineligibility
instruction was necessary because the jury expressed no concern over the
possibility of Kelly’s future release. Although the juries in Simmons
and Shafer asked for further instructions on parole eligibility, the
trial judge’s obligation to provide sufficient instructions is not
dependent upon the jury requesting clarification.
United States v.
Cotton
122 S.Ct.
1781 (2002) In the first of
three cases to be decided this term concerning the scope of Apprendi v. New Jersey, 530
U.S. 466 (2000), the Supreme Court unanimously ruled: (1) a defective
indictment does not deprive a court of jurisdiction; and (2) the
Apprendi/Jones error in this case -- the omission of the drug quantity
from the indictment where the quantity increased the statutory maximum
sentence -- did not entitle the defendants to reversal of their
sentences due to their failure to object at the time of trial and the
fact that the evidence concerning the drug quantities was overwhelming
and essentially uncontroverted.
The defendants
in this case were charged in a superseding indictment with conspiracy to
distribute and to possess with intent to distribute a "detectable
amount" of cocaine and cocaine base. The indictment did not allege any
of the threshold levels of drug quantity that lead to enhanced
penalties. In accordance with the superseding indictment, the jury was
instructed that the amounts involved were not important in rending its
verdict.
Following
conviction, and consistent with prevailing practice of federal courts at
the time of trial, the judge made a finding of drug quantities that
implicated a statutory provision for enhanced penalties. At the time of
sentencing, none of the defendants complained that their sentences were
based on a drug quantity that had not been alleged in the
indictment.
While the
defendants’ cases were pending on appeal, the Apprendi decision was issued. The defendants
then for the first time argued that their sentences were invalid under
Apprendi because the issue of drug quantity
was neither alleged in the indictment nor submitted to the petit jury.
Applying plain
error review, the Fourth Circuit Court of Appeals vacated the sentences
after finding that a court is without jurisdiction to impose a sentence
for an offense not charged in the indictment. Such an error, in the view
of the Fourth Circuit, seriously affected the fairness, integrity or
public reputation of judicial proceedings.
The Supreme
Court first addressed whether an omission from an indictment is a
"jurisdictional" defect. The case supporting the Fourth Circuit’s
decision was Ex Parte Bains, 121 U.S. 1
(1887), which the Supreme Court put in its historical context. At the
time of Bains, it was only by creating an
"elastic concept of jurisdiction" that the Supreme Court was able to
examine and rectify constitutional errors in criminal cases. Because of
the changed scope of the Supreme Court’s review powers, the concept of
"jurisdiction" has taken on a different meaning today. It now refers
only to a court’s statutory or constitutional power to adjudicate the
case. Post-Bains cases establish that a flaw in the indictment does not
deprive a court of its adjudicative power. Insofar as Bains suggests
that a defective indictment deprives a court of jurisdiction, it is
overruled by the Supreme Court.
Having
disposed of the jurisdictional issue, the Supreme Court turned to
application of the plain-error test to determine whether the forfeited
claim of error could nevertheless be corrected. This test has
essentially four components: a showing of (1) error, that was (2)
"plain", that (3) affected substantial rights, and that (4) seriously
affected the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Olano, 507
U.S. 725, 731-732 (1993).
The Government
conceded both that the omission of the drug quantity in the indictment
was error under Apprendi and Jones v. United States, 526
U.S. 227 (1999), and that it was plain at the time of appeal. As for the
third prong of the plain error test -- whether the error "affect[ed]
substantial rights" -- the Supreme Court did not decide whether the
defendants were correct in their characterization of the error at issue
as structural. Instead, the Supreme Court looked to the fourth aspect of
plain error analysis and found that no relief was required because the
error did not "seriously affect the fairness, integrity, or public
reputation of judicial proceedings." Olano,
at 732. This is because evidence of the drug quantity was "overwhelming"
and "essentially uncontroverted."