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January 11, 2006

SCOTUS reinstates California death sentence in 5-4 vote

As detailed by SCOTUSblog and How Appealing, today the Supreme Court issued its first major death penalty ruling in an argued case: Brown v. Sanders, No. 04-980 (S. Ct. Jan 11, 2005) (available here). Sanders is a 5-4 decision, authored by Justice Scalia, which overturns a Ninth Circuit decision which had reversed a death sentence.

Here is an AP report on the Sanders ruling, and Lyle Denniston summarizes the decision this way: the Court "ruled that a death sentence may sometimes stand even though the jury based it in part on a factor that was later found to be invalid.... If the aggravating factor at issue was part of the process of narrowing the class of individuals subject to the death penalty, the Court said, a sentence is not unconstitutional if that factor is struck down but others remain to serve the narrowing function."

I am pretty sure the specifics of Sanders are unlikely to have a broad impact on capital sentencing realities or review (although I have not yet had a chance to read the opinions closely for significant dicta).  But this ruling provides an interesting and telling indication of the likely development of death penalty jurisprudence under the Roberts' court:

First, consider that CJ Roberts' serves as a swing vote in Sanders by joining Justice Scalia's majority opinion to reinstate a death sentence.  Though this is only one vote, it suggests that CJ Roberts' votes in capital cases may be quite similar to the votes of his predecessor, CJ Rehnquist. 

Second, Sanders is the first 5-4 ruling during Justice O'Connor's peculiar service as a lame duck Justice, and Justice O'Connor likewise serves as a swing vote in Sanders by joining Justice Scalia's majority opinion to reinstate a death sentence.  I had an inkling that the Court might try this Term to avoid entirely any 5-4 dispositions in which Justice O'Connor was a deciding vote.  Sanders shows that the Court is comfortable with Justice O'Connor casting a decision vote as a lame duck in at least one case.  I cannot help but speculate about whether the Court felt that, in a capital case, it was especially inappropriate to delay disposition for a new arrival or perhaps felt that it was inevitable that Justice O'Connor's replacement would not vote any differently in this case.

Third, beyond the transition issues, the 5-4 ruling in this capital case suggests that CJ Roberts will not always be able to bring significantly greater consensus to the Supreme Court's sentencing jurisprudence.  (Recall that, as discussed here, an important theme the hearings for nominee John Roberts was whether he might be able to forge more consensus within the Court. Senate Judiciary Committee Chair Arlen Specter, in his prepared opening statement to those hearings, said wishfully that the "next chief justice will have the potential ... to bring consensus to the court which has made a hallmark of 5-4 decisions, many of which are inexplicable.")

Finally, if one wants to be especially cynical or simply believes in foreshadowing, it seems worth noting that the Court handed down Sanders on a day that the Court is hearing a major death penalty innocence case, House v. Bell.

January 11, 2006 at 11:24 AM | Permalink


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Tracked on Jan 11, 2006 12:34:29 PM


In response to your third point, I think you need to give Roberts some time. Progress on the Court comes at a glacial pace, and this is just the first death penalty case of his tenure.

Posted by: Marc Shepherd | Jan 11, 2006 12:58:44 PM

"or perhaps felt that it was inevitable that Justice O'Connor's replacement would not vote any differently in this case."

No doubt about it. The decision is fully consistent with Judge Alito's opinion in Flamer v. Delaware, which is cited in footnote 3. Judge Alito has been vehemently attacked for this opinion, but it was vindicated today.

Disclosure: I wrote an amicus brief in this case (see Breyer p. 7).

Posted by: Kent Scheidegger | Jan 11, 2006 2:09:06 PM

Of course, that assumes that Alito gets confirmed... although that may even be more likely than his vote in this sort of case.

Posted by: Doug B. | Jan 11, 2006 3:39:16 PM

Of course, CJ Roberts didn't just join Scalia's majority opinion; as the Chief Justice in the majority he presumably exercised his prerogative of tapping Scalia to write for the Court (rather than, e.g., a more DP-moderate voice like O'Connor or Kennedy. That to me is another one of Sanders's (unfortunate) signs and portents, apart from its substance . . . .

Posted by: Adam Thurschwell | Jan 11, 2006 5:03:59 PM

Doug, I hope you are right but I fear you may be premature that this opinion will have little effect on capital jurisprudence. The formulation by J. Scalia's majority opinion - that a capital sentence will be saved if "one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances" - looks like a formula for upholding capital sentences whenever an evidentiarily broad aggravating factor has been considered at sentencing. Such as "the circumstances of the crime." We shall see. I haven't perused the briefs, but the transcript of oral argument (and the majority and dissents) seem to argue for, as Justice Stevens noted in dissent, a mischievous effect on "settled law," particularly given Justice Scalia's oft-stated views about what he sees as the illogic of "eligibility" and "selection."

Posted by: Ted Carey (attorney) | Jan 11, 2006 7:34:55 PM

Looks like the accused was lucky to get as far as he did - winning at 9th Circuit on a pretty technical issue.

The more troubling thing in my mind are how does one distinguish this one-body (drug dealer girl friend?) murder case from something more serious? How is this out of the ordinary as murder cases go? The case is a bit radical in that it approves death without any evidence or discussion about whether the accused and the crimes are truly the "worst of the worst" amongst killers and their acts that cause death. Also note no details about past convictions of Sanders, if any, or details of injury to boyfriend. Does this in effect green light DP prosecution for pretty much any murder that falls into the lap of an ambitious prosecutor? What sort of murder or murderer would not pass muster with this Court as "too ordinary" for DP treatment?

Losing the ability to argue for a "do over" based on burglary and robbery and witness killing and "cruel and heinous" vs. same facts but two less aggravating factor labels seems like no great loss for habeas counsel. But trend away from any "reality check" by anyone at the USSCT about egregiousness is troubling.

(Lawyer, experienced as 1981-83 prosecutor, 1983-84 defense counsel, 1993-2006 habeas DP counsel, 1985 military magistrate.)

Posted by: cfw | Jan 12, 2006 11:15:14 AM

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