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November 18, 2013

Justice Sotomayor calls for Alabama's capital sentencing system to get a "fresh look"

SCOTUS wrapped up its formal November activities with an order list this morning that included two dissents from denials of cert in state criminal cases.  SCOTUSblog here reports on these basics:

Among cases the Court declined to hear was a challenge to Alabama’s death sentencing scheme, filed by an inmate who was given such a sentence by the judge even though the jury had voted eight to four against that punishment.  Justice Sonia Sotomayor, in a twelve-page dissent most of which was joined by Justice Stephen G. Breyer, said that the Court should take a new look at Alabama’s capital punishment approach.  It is now the only state where judges have imposed death sentences contrary to advisory verdicts recommended by juries.   In a part of the opinion that Justice Breyer did not join, Justice Sotomayor argued that the Alabama approach may violate a string of modern Court rulings enhancing the role of juries in the sentencing process.  She wrote as the Court denied review in Woodward v. Alabama (13-5380).

The Court’s denial of review in two other cases drew dissenting opinions or separate statements by Justice Samuel A. Alito, Jr.   One was Rapelje v. McClellan (12-1480), a test of federal courts’ power in habeas cases to defer to summary rulings by state courts in criminal cases.  Justice Antonin Scalia joined the Alito dissent in that case.

The case concerning Justice Alito has more to do with habeas review than sentencing issues, but the case concerning Justice Sotomayor has to be right in the wheel-house of sentencing fans.  Here is how Justice Sotomayor's dissenting opinion (which has a graph in the middle) gets started and concludes:

The jury that convicted Mario Dion Woodward of capital murder voted 8 to 4 against imposing the death penalty.  But the trial judge overrode the jury’s decision and sentenced Woodward to death after hearing new evidence and finding, contrary to the jury’s prior determination of the same question, that the aggravating circumstances outweighed the mitigating circumstances.  The judge was statutorily entitled to do this under Alabama law, which provides that a jury’s decision as to whether a defendant should be executed is merely an “advisory verdict” that the trial judge may override if she disagrees with the jury’s conclusion. In the last decade, Alabama has been the only State in which judges have imposed the death penalty in the face of contrary jury verdicts.  Since Alabama adopted its current statute, its judges have imposed death sentences on 95 defendants contrary to a jury’s verdict. [FN1] Forty-three of these defendants remain on death row today.  Because I harbor deep concerns about whether this practice offends the Sixth and Eighth Amendments, I would grant Woodward’s petition for certiorari so that the Court could give this issue the close attention that it deserves....

[FN1] A list of these 95 defendants sentenced to death after a jury verdict of life imprisonment is produced in an appendix to this opinion. By contrast, where juries have voted to impose the death penalty, Alabama judges have overridden that verdict in favor of a life sentence only nine times.

Eighteen years have passed since we last considered Alabama’s capital sentencing scheme, and much has changed since then.  Today, Alabama stands alone: No other State condemns prisoners to death despite the considered judgment rendered by a cross-section of its citizens that the defendant ought to live.  And Apprendi and its progeny have made clear the sanctity of the jury’s role in our system of criminal justice. Given these developments, we owe the validity of Alabama’s system a fresh look.  I therefore respectfully dissent from the denial of certiorari.

November 18, 2013 at 11:05 AM | Permalink

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Given Justice Sotomayor's inability to get even Kagan or Ginsburg (much less any of the five "conservatives") to sign onto a single word of her dissent, I think we have a good idea of how forlorn the challenge to Alabama's override system is.

Posted by: Bill Otis | Nov 18, 2013 11:13:54 AM

Her reasoning seems rather dubious. On the one hand, she opines: "Because ‘"capital punishment is an expression of society’s moral outrage at particularly offensive conduct,"’ jurors, who `express the conscience of the community on the ultimate question of life or death,' seem best-positioned to decide whether the need for retribution in a particular case mandates imposition of the death penalty." Slip op. at 4 n.2 (citations omitted). On the other, she is highly troubled that judges' decisions to override jury verdicts recommending life in prison are affected by the pressures of running for re-election. See id. at 7-9. Is there not some serious tension between these two propositions? After all, judges running for re-election are doing nothing more or less than responding to the perceived desires of the communities they serve.

Posted by: Michael J.Z. Mannheimer | Nov 18, 2013 12:02:49 PM

It is standard business for four justices not to sign on to a dissent of denial and even if the other two agreed it wouldn't mean much without a fifth vote. So, even if they agreed, K/G might think the best thing is to have a justice or two flag the issue but not sign on to it. Pushing for cert (only needing four votes) would also be strategically unwise w/o a fifth vote.

The narrowest ground flagged is that the judge in effect violating recent doctrine by increasing the penalty (death) via facts the jury did not have available. Breyer doesn't care much for those opinions but as applied to the death penalty is willing to "get on" (Ring v. Arizona).

As to the second comment, the jury is able to provide the function of being the "conscience of the community" for a specific case -- that is seen as one of the basic functions of the jury. A jury retains this special function even if the judge is elected by the people at large. The jury provides a means for individual members of the community, "the people," to play a special direct rule in adjudication.

A general election of a judge might provide some sort of "expression" of the community's opinion, but it is not the same as what a jury provides. Also, the dissent suggests a judge might act with an upcoming election in mind. Political pressures, not a truly "judicial" judgment motivates their decision. The judge in effect is trying to influence the community to vote for him/her matching the needs of the election cycle, not just reflect the current conscience of the community.

Anyway, I don't think it best to single out this one bit -- the implication to me is that she and others think a certain type of "expression" is appropriate when deciding in this area. Either way, the case shows the complications in this area. There are cases when a jury unanimously held a defendant should get life imprisonment. One judge overrode their decision.

Posted by: Joe | Nov 18, 2013 12:36:42 PM

Joe --

How could you possibly know what Kagan and Ginsburg were thinking?

You think it might be possible they voted to deny cert because -- now hold your hat -- the case was correctly decided below???

In order to invalidate Alabama's override, the SCOTUS would have to directly overrule its 8-1 decison in Harris v. Alabama, 513 U.S. 504 (1995). The sole dissenter there, Justice Stevens, of course is no longer on the Court.

It is true that Harris preceded Apprendi and Ring, but the plurality opinion in Apprendi (and the one upon which Ring is largely based) said point-blank that the decision did NOT affect judicial overrides in capital cases. And five Justices (Scalia, Kennedy, Thomas, Ginsburg and Beyer) who voted with the majority in Harris are still on the Court. Two others who were not there are Roberts and Alito.

I think you can do the math.

P.S. If there is any reading of tea leaved to be done here, which I doubt, it would be that the anti-override position is weaker than it was in 1995, since Kagan, who said nothing here, replaced Stevens, who was Harris's sole, and loud, dissenter.

Posted by: Bill Otis | Nov 18, 2013 2:19:17 PM

Bill,

You overlook the fact that Justice Breyer, in his separate opinion in Ring, adopted the Stevens position in Harris, and he joined the relevant part of Justice Sotomayor's opinion today. On the other hand, Joe seems to overlook the fact that Justice Breyer (not surprisingly) did NOT join the portion of Justice Sotomayor's decision today resting on the Apprendi/Ring line. So, for those of your scoring at home, that's 7-2 for overruling Harris and 8-1 for applying Apprendi/Ring to the decision of whether to impose the death penalty.

Posted by: Michael J.Z. Mannheimer | Nov 18, 2013 3:00:05 PM

of course, the C&C gang are totally opposed to judicial override when a judge converts a death sentence to life:

http://www.crimeandconsequences.com/crimblog/2013/06/overriding-the-jurys-penalty-v.html

Posted by: HGD | Nov 18, 2013 4:35:03 PM

Michael --

"So, for those of your scoring at home, that's 7-2 for overruling Harris..."

Actually, it's 7-2 AGAINST overruling Harris, assuming that Sotomayor's call for a "fresh look" is a statement that it should be overruled.

Doug's headline here is a classic example of how liberals strain to turn obvious defeat into victory. Isn't the real story here, "By lopsided margin, Court refuses to review Alabama's capital case override"?

Posted by: Bill Otis | Nov 18, 2013 4:37:04 PM

HGD --

"[O]f course, the C&C gang are totally opposed to judicial override when a judge converts a death sentence to life."

Baloney.

First, the C&C entry you reference was not about a statute, like Alabama's, that permits an override in either direction. It was about a system that permits an override in only ONE direction.

Second, no one at C&C takes or ever has taken the position that there is NO CASE in which the judge might properly override a death sentence. Unlike abolitionists (like you, for example), C&C does not take a one-size-fits-all position on the DP question. Some killers should get it, others shouldn't.

Third, the C&C entry disagreed with a judicial override in a PARTICULAR CASE; it was not about the general concept of overrides.

Other than that, your post is right on the mark.

Posted by: Bill Otis | Nov 18, 2013 5:05:11 PM

Bill, the C&C post says:

"When the aggravating and mitigating factors are clear, and the question is the discretionary one of which predominates, I do not believe the judge can or should substitute his judgment for the jury's, at least as long as the jury's judgment is within the realm of reasonable disagreement."

Please explain why that statement does not pertain to "the general concept of overrides," and how it is consistent with suporting judicial override in Alabama.

PS, not sure what in my post conveys that I'm an abolitionist.

Posted by: HGD | Nov 18, 2013 5:10:07 PM

Bill,

Oops. Of course, you're right. AGAINST overruling Harris, and AGAINST applying Apprendi/Ring to the decision of whether to impose the death penalty.

Posted by: Michael J.Z. Mannheimer | Nov 18, 2013 5:15:22 PM

HGD --

"Please explain why that statement does not pertain to "the general concept of overrides," and how it is consistent with suporting judicial override in Alabama."

Because of the qualifier at the end of it: "...at least as long as the jury's judgment is within the realm of reasonable disagreement."

Some juries just blow it (see, e.g., the lovely Ms. Casey Anthony). When the jury completely screws the pooch in a sentencing matter, then the judge is warranted, in my view, in stepping in (although for Constitutional reasons he cannot correct an outright acquittal).

If you're not an abolitionist, good for you. Are you?

Posted by: Bill Otis | Nov 18, 2013 6:18:11 PM

Bill --

The Alabama statute doesn't limit the judge's authority to override to cases where "the jury completely screws the pooch." It only requires the judge to give "consideration" to the jury's verdict and otherwise gives him plenary authority. So, do you believe that the Alabama capital sentencing scheme is mistaken to the extent that it allows a judge to substitute his view of the agg/mit balance for that of a jury that did not act unreasonably?

And no, I'm not an abolitionist, but I'm not sure why that's relevant.

Posted by: HGD | Nov 18, 2013 8:06:41 PM

HGD --

I can't give you a definitive answer because the question of when a jury acts "reasonably" in giving or declining to give the DP is a question too fraught with value judgments.

I can tell whether the Casey Anthony jury acted unreasonably in acquitting her, because the facts proved to any sensible person that she did it. But largely factual determinations are vastly different from the kind of determinations that get made in DP deliberations.

I'm glad you're not an abbie. You're correct, I was wrong to assume it initially.

I ask about it simply because I am interested in knowing the orientation of commenters on that issue.

Posted by: Bill Otis | Nov 18, 2013 10:18:45 PM

HGD --

I just now saw Kent Scheidegger's post at C&C about this case. I believe you will find it thoughtful, analytical and balanced. I sure do. It is here: http://www.crimeandconsequences.com/crimblog/2013/11/judicial-overrides-in-death-pe.html#more

Posted by: Bill Otis | Nov 18, 2013 10:27:12 PM

Someone explain how the vile feminist lawyer differs from the KKK. List the differences 1, 2, 3. There is no difference. A lawyer founded false movement. Made mainstream and Politically Correct by judicial tyranny and litigation. All PC is case. A false front for lawyer rent seeking. Based on hatred, and racial supremacy. Reproductive rights is feminist lawyer code for reducing the fecundity of the undesirable ethnic groups.

Sotomayor occupies the KKK seat of Hugo Black and Earl Warren.

Posted by: Supremacy Claus | Nov 19, 2013 12:12:48 AM

Sotomayor's opinion is curious--to say the least. I fail to see how Apprendi cuts either way. Saying that the jury trial right is important--well, yeah it is, but there's no right to jury sentencing, and if judicial sentencing is ok, why isn't an advisory jury?

Sotomayor just doesn't like the death penalty, and she's more interested in saving death row inmates than the reliance interest of the State of Alabama and victims' families.

At least she didn't totally embarrass herself like she did in Buck v. Thaler. I guess she has smarter clerks this time around.

Posted by: federalist | Nov 19, 2013 12:45:06 AM

Bill Otis starts off by making a judgment that G/K not signing on to the dissent provides a "good idea" (since apparently it suggests what they are thinking when they don't accept a case for review, which is otherwise of little interest since justices reject nearly every case, even some which they might think were decided wrongly), then wonders how I -- like your average blog comment -- can suggest an alternative thing they "might" be thinking. How possible indeed.

The dissent does counsel it might be time to re-examine precedents, which the USSC has done in the criminal justice area (including capital punishment) repeatedly in the last fifteen years. The line drawn in Ring is a reasonable thing to address here. Also, it is unclear how loyal this ruling was to Ring. To quote the dissent:

"At that hearing, the State presented additional evidence concerning the mitigating circumstances presented to the jury. The trial judge, in part on the basis of the new evidence, rejected the jury’s finding."

As to the professor's statement, Breyer concurred in Ring because of the nature of the death penalty. He agreed on separate grounds. Sotomayor could expect him to do so as well here, even if he disagrees with the Court's general Apprendi principles. I am aware of his position and did not really "overlook" it.

Anyway, it is far from unreasonable to argue as Sotomayor does that the principles of Apprendi et. al. should be applied here (even if the state's regime might be acceptable in certain cases). A trial judge, not a jury, looked at certain "facts" and the result was a higher penalty. A jury is should be the one who weighs "evidence" here.

Finally, the ultimate principle here is respecting the judgment of the jury. The regime, though as applied much more often reverses decisions by the jury for life, includes cases where a jury's judgement that the death penalty is warranted is overturned by one judge. KS earlier noted that if a jury reasonably determines by the facts provided that the death penalty is warranted, a judge should not overturn. I would call for a consistent rule.

If a jury makes a mistake as a matter of law, okay, but a judge should not hearing new evidence like this and on his/her own override the judgment of the jury, resulting in a higher sentence. [To forestall confusion, the death penalty might be illegitimate on other grounds.]

Posted by: Joe | Nov 19, 2013 11:26:43 AM

Most state systems have a one-way override. If the jury recommends death, it is only a recommendation (but we can't tell the jury that) and the judge gets to hear more evidence at a sentencing hearing. If the jury recommends life without, that is the maximum and the judge can't override it.

This type of system only makes sense if you consider certain findings to be elements of a capital sentence (thereby implicating double jeopardy and the reasonable doubt requirement). The Supreme Court in Ring held that statutory aggravators were sufficiently element-like to require a jury finding before death can be imposed. However, in other recent cases (e.g. Kansas v. Marsh), they have suggested that other findings (weighing aggravators against mitigators) are not sufficiently element-like to impose the burden on the state to prove that fact beyond a reasonable doubt. That would seem to suggest that constitutionally, at least, the final determination of life vs. death can be left up to the judge as Alabama does with the jury's verdict being only a recommendation.

Posted by: tmm | Nov 19, 2013 12:09:27 PM

Joe --

"Finally, the ultimate principle here is respecting the judgment of the jury."

When the jury's judgment is death, do you respect what you call the "ultimate principle?" Or does your respect then go POOOOOF?

Posted by: Bill Otis | Nov 19, 2013 12:41:22 PM

Bill Otis:

"It is true that Harris preceded Apprendi and Ring, but the plurality opinion in Apprendi (and the one upon which Ring is largely based) said point-blank that the decision did NOT affect judicial overrides in capital cases. And five Justices (Scalia, Kennedy, Thomas, Ginsburg and Beyer) who voted with the majority in Harris are still on the Court. Two others who were not there are Roberts and Alito."

They said that, but they also said it with the Arizona system in Apprendi. So Ring undercut that. Look at O'Connor's dissent saying Apprendi wasn't consistent with Walton. The Court responded in Ring by saying "OK, we overrule Walton." In Blakely v. Washington, another Apprendi-line case, said that the Federal Sentencing Guidelines weren't impacted. Then we get Booker.

It's hard to square Ring and Alabama's procedure. Sure, you can say one is the finding of a fact while the other is a weighing of a fact, but I'd argue that it's finding out the degree that the fact exists. Finding someone possessed Marijuana and finding they possessed more than 30 grams of Marijuana are both facts to be found. Likewise, finding the presence of an aggravating factor and the finding of the presence of an aggravating factor substantial enough to outweigh a mitigating factor are arguably both facts. Given the Apprendi-line cases about increasing the maximum punishment, the fact that even the Judge has to find that the weight of one outweighs the other suggests it falls under this rubric. The facts of this case are especially significant since the Judge seemed to explicitly discount a jury's finding of fact which would contradict Ring explicitly.

However, since Justice Scalia dissented in Alleyne, he may not wish to overrule Harris. Especially since neither Justice is a fan of the current death penalty framework (in spite of Justice Scalia's new found wisdom in Ring). While I suspect four Justices could have been found for cert, it's not clear if either Scalia or Justice Thomas would have made five. Nor do I think Justice Kennedy would have because his concern is about the evolving decency of a maturing society, not procedural protections in death penalty cases.

Posted by: Erik M | Nov 19, 2013 2:28:55 PM

tmm,

You say that "in other recent cases (e.g. Kansas v. Marsh), they have suggested that other findings (weighing aggravators against mitigators) are not sufficiently element-like to impose the burden on the state to prove that fact beyond a reasonable doubt." No, they didn't say that in Marsh. The statute in Marsh DID put the burden of proof BARD on the prosecution. The issue in Marsh arose because the oddly-worded Kansas statute required the prosecution to prove BARD that aggravators were not outweighed by mitigators, and the defendant claimed that this formulation violated the Constitution given that, in a case where the jury found aggravators and mitigators to be in equipoise, it would have to sentence the defendant to death. The Court rejected the claim, in part because the statute DID put the burden of proof BARD on the State. Marsh is inapposite.

Posted by: Michael J.Z. Mannheimer | Nov 20, 2013 10:45:18 AM

Professor, having reread through Marsh, I see where I got the impression stuck in my memory of the case that led to my comment. While part of the analysis did feature on the unique aspects of the Kansas statute, the remainder of the analysis discussed the issue more generally -- including suggesting that the part of Walton approving placing the burden of proving mitigating evidence on the defendant was still valid notwithstanding the overturning of other parts of Walton in Ring. Theoretically, a future Supreme Court could find that discussion to be dicta. But, I think that the full discussion in Marsh at least hints that there is no constitutional requirement for the State to prove to a jury the proper weighing of aggravating and mitigating evidence.

Posted by: tmm | Nov 20, 2013 4:29:57 PM

tmm --

As I've said before, you should be an adjunct professor somewhere. The sobriety, balance and analytical quality of your posts has put you in the first tier of commenters on this blog.

Posted by: Bill Otis | Nov 20, 2013 10:18:15 PM

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