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November 13, 2006

Some thoughts on Belmontes

Notable blogosphere chatter about the Supreme Court's decision in Belmontes (basics here) includes posts from Orin Kerr, Karl Keys and  Kent Scheidegger.  I want to add some (random?) thoughts:

1.  Justice Stevens' dissent is longer and more detailed than Justice Kennedy's majority opinion.  I cannot help but speculate that perhaps Justice Stevens was writing a majority opinion until he lost a vote.

2.  The two new Justices are silent, though they both failed to sign on to Justice Scalia's intriguing little concurrence (which Justice Thomas did join).

3.  The defendant committed his crime in March 1981 and has now had his death sentence (finally?) affirmed over 25 years later.  Why aren't the law-and-econ folks working on what could make for a more efficient and effective system of capital sentence review?

4.  The defendant is not likely to be executed anytime soon; there is a de facto moratorium on executions in California while its lethal injection protocol is being challenged in federal district court.  There certainly won't be any executions in California the rest of 2006, and it's surely possible (probable?) the state won't be able executing anyone in 2007.

5.  The Supreme Court has, in the last 16 years, considered the "factor (k) instruction" California's unique death penalty system in light of the Eighth Amendment three different times (in Boyde, Payton, and now Belmontes).  That instruction impacts, at most, a few death penalty cases in California each year.  Meanwhile, over the same period, the Supreme Court has never directly addressed applicable burdens of proof at sentencing in light of the Due Process Clause.  This issue could impact more than 1,000,000 state and federal sentencings each year. 

November 13, 2006 at 03:04 PM | Permalink


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» Round-Up from SCOTUSblog
Kent Scheidegger at Crime & Consequences weighs in on the Belmontes decision here. Doug Berman also shares his thoughts on the case here at Sentencing Law and Policy. At How Appealing, Howard Bashman has collected some media reports on the... [Read More]

Tracked on Nov 14, 2006 3:55:10 PM


"I cannot help but speculate that perhaps Justice Stevens was writing a majority opinion until he lost a vote."

And which vote would that be? The author of the eventual majority opinion? Not likely. Scalia or Thomas? Not on your life. Roberts or Alito? I very much doubt that either is sympathetic to expansive views of Lockett. Although long, most of the opinion is a defense-slanted recitation of facts. It doesn't read like a majority to me.

"Why aren't the law-and-econ folks working on what could make for a more efficient and effective system of capital sentence review?"

Well, we already know the largest single step. The federal courts can simply obey the law (AEDPA) and stop evading it.

Posted by: Kent Scheidegger | Nov 13, 2006 3:19:44 PM

In cases where there is a "flip," it's quite common to assign the majority opinion to the "flipping" Justice. It's the best insurance policy that the flipper won't flip a second time. That would make Kennedy the most likely flipper (and he's been known to do it before).

But in this case, I have to agree with Kent. Given that this was the first published opinion of the term (in an argued case), it's highly unlikely that anyone flipped. The length of Justice Stevens's dissent doesn't really tell much.

I do agree with Doug that 25 years (and counting) between crime and punishment is too long, and failure to enforce AEDPA is only a part of it. I also agree with Doug that SCOTUS spends a disproportionate share of its time on death cases. Then again, a whole host of wrongly decided SCOTUS precedents since Furman have created this mess in the first place.

Posted by: Marc Shepherd | Nov 13, 2006 4:37:25 PM

I think it's important to note that this is not an AEDPA case. Several people around various blogs are complaining that courts are not enforcing AEDPA. While that very well may be the case (and definately is in the 9th), that doesn't matter in this case.

Posted by: da_2_b | Nov 13, 2006 4:50:40 PM

I have to agree with Kent. The dissent doesn't read like a majority to me. Also, given the court's past history with factor (k), I think it's highly unlikely that a majority existed to affirm the 9th Circuit's position.

Posted by: Mr. T | Nov 13, 2006 5:59:24 PM

Finally an AEDPA (Anti-Effective Death Penalty Act) that is a death penalty case in which execution is imposed and not a result of a life sentence without possibility of parole, possibly the harshest of all punishments. Belmontes bludgeoned to death a 19 year old girl with a barbell. I don’t believe any amount of born-again Christian, prison facade can replace the life of the 19 year old girl. I have seen many who find Jesus as their savior in prison, but Jesus did not try to save John the Baptist, why would he save the true sinners, the murders. AEDPA was designed to speed up executions, but what it has done is prevent first time, non-violent drug offenders from ever getting a review of their sentencing, no matter how cruel and unusual. AEDPA has not speeded up any lethal injections, but has prolonged many live-in-prison, until you die executions, with no hope of ever receiving a review of your sentence. The right to Habeas Petition for redress of grievances has not been suspended, but terminated at the end of one year. The guidelines have been in place almost 20 years and they still have not gotten it constitutionally right, how can they limit your right to challenge an unconstitutional sentence imposed sometime in the past to one-year. Next November will be 20 years of Drug War internment, it is time to end the madness and utilize rehabilitation instead of incarceration until death. “Prisons were meant to reform, not eliminate mankind”

Posted by: Barry Ward | Nov 13, 2006 6:03:12 PM

Must say that I liked the simple account of Justice Stevens concerning the jury instruction, and likely understanding of the jury (presumed to follow plain language of instructions), a lot more than I did the majority's explanation of how the jury was likely to have received the sum and substance. Factor k is problematic, as the French say, and it is truly a shame that this much time and effort must go into its litigation. Kudos to the dissent for sticking to their guns on this.

Posted by: Major Mori | Nov 13, 2006 7:00:39 PM

da_2_b: This would have been an AEDPA case if the Supreme Court had correctly decided Lindh v. Murphy.

Marc: "Then again, a whole host of wrongly decided SCOTUS precedents since Furman have created this mess in the first place." Quite right. But for the Lockett-Eddings-Penry fiasco, there would have been no issue at all here. Whether the facts outside the crime itself need to be considered as "mitigating" would be a matter of state law and not a federal question.

Posted by: Kent Scheidegger | Nov 13, 2006 7:39:29 PM

Major Mori:

So it's your position that the jury would presume that it was forced to listen to Belmontes evidence--only then to be forced to ignore it in the jury room. That strains credulity.

The dissent would have been much better if it had simply stated that the author would overrule Boyde. It seems a stretch to say that Boyde remains good law, but that Belmontes gets a sentencing hearing.

Hopefully, the Ninth (or more correctly, certain judges on the Ninth) will stop the silliness over factor (k). Hopefully, a trilogy will be enough.

Posted by: sobrien | Nov 13, 2006 8:27:03 PM

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