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October 18, 2005

Further reflections on Schriro v. Smith

The enduring story from Monday's SCOTUS action is the Court's fascinating and important decision to grant cert in Recuenco to consider whether Blakely error can be harmless (basics here, commentary here).  But, before I continue my obsession with that case, I must give a little more attention to the Court's little opinion in Schriro v. Smith (discussed here) concerning the procedures for adjudicating Atkins claims by capital defendants.

First, I think it is critical to understand Schriro v. Smith as a decision about habeas authority and not as a direct or even implied ruling about the required procedures for adjudicating a capital defendant's claim of mental retardation.  The leads in this Washington Post story and this AP story on Schriro v. Smith could be mis-read to suggest it includes some sort of ruling on the merits.  But exactly what are required Atkins procedures remains unresolved until SCOTUS formally takes up the issue (which, to venture a prediction, will probably not happen until OT 2006).

Second, whenever SCOTUS takes up this issue on the merits, the case will serve as an interesting test of the Court's commitment to jury trial rights.  Sean Sirrine in this post reads Ring and Apprendi to require a jury trial on the issue of mental retardation.  But I think the Court could (and should?) rely on a distinction raise by Justice Stevens in Apprendi to call mental retardation a mitigating fact that can be left to judges.  A distinct but related matter concerns the allocation and burden of proof concerning mental retardation; I can envision a number of opinions on this consequential issue.

Third, the fact the first two opinions of the Roberts Court have involved intricate criminal matters emboldens me to continue kvetching about the lack of attention being given to criminal justice issues in the hearings and media buzz around new Justices.

October 18, 2005 at 01:36 AM | Permalink


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Doug, I agree with your points I and II that the Atkins/Ring-Apprendi issue is imminent and import, but not ultimately addressed by Schriro. However, I don't think that the Court will be able to avoid the Atkins-Apprendi question -- must the absence of mental retardation be proved to a jury? -- by putting this finding in the mitigating evidence category. While mental retardation is undoubtedly mitigating in a capital case, Atkins turns on an entirely different principle, that a death sentence is constitutionally disproportionate to the defendant's culpability, even for a capital crime, where the defendant is mentally retarded. Thus, for constitutional-procedural purposes, mental retardation stands on the same footing as other capital culpability requirements like Tison v. Arizona's implied malice threshold for imposing death -- a finding that cannot be put in the mitigating evidence box. There are certainly distinctions to be made between the Atkins and Tison findings -- one could argue, e.g., that since mental retardation is best understood as an affirmative fact to be proved by the defense, the burden of production ought to lie in the first instance with the defense -- but I don't see why that would take ultimate proof (or disproof) of mental retardation out of the jury trial right, if it also applies to non-mitigating proportionaity thresholds like Tison. The real distinction in this area, if there is going to be one, will have to turn on whether the Apprendi principle applies to "constitutional facts" without which no higher maximum sentence (of death) can be imposed as well as the "statutory facts" that Apprendi itself addresses. Ring itself is ambiguous on this point since it dealt with statutory facts whose (legislated) existence is compelled by the Eighth Amendment (i.e., statutory aggravating factors which capital sentencing schemes must employ to narrow the range of murderers eligible for death). The logic of Apprendi would nevertheless seem to apply both to Atkins and to Tison insofar as they are facts, like Ring's statutory aggravators, the finding of which are prerequisites to imposition of the (higher maximum) sentence of death. If any of this holds water, it seems to me (and as you know I've argued elsewhere) that there remain Apprendi aftershocks to be felt in the capital sentencing arena that go far beyond Ring.

Posted by: Adam Thurschwell | Oct 18, 2005 2:22:50 AM

I see the logic and insights of many of your points, Adam, though I think a number of distinctions can be made between proof of implied malice and proof of the absence of mental retardation (e.g., my offense/offender distinction, in addition to the aggravator/mitigator distinction). But, of course, we will only know when the Supreme Court tells us.

Posted by: Doug B. | Oct 18, 2005 9:07:40 AM

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