« Two distinct Illinois appellate panels find Miller retroactive on two distinct grounds | Main | Notable (and very unusual?) Third Circuit order vacating (unpublished) sentencing affirmance »

December 3, 2012

Some sentencing action in the SCOTUS order list

As reported via this SCOTUSblog post, the "Supreme Court on Monday released added orders from its Friday Conference, but the list did not include any" new cert grants. But there were two items of note for sentencing fans:

Justice Sonia Sotomayor filed a lengthy dissent from the Court’s denial of review in a Kentucky murder case, Hodge v. Kentucky (11-10974).

In addition, the Court [denied cert] on a claim that a jury, not a judge, must find the facts that support transferring the case of a juvenile accused of murder from juvenile to adult court, leading to greater punishment.  The case is Villalon v. Indiana (11-1324).

Justice Sotomayor dissent from the denial of cert, available here, runs ten pages and starts this way:

Petitioner Benny Lee Hodge was convicted of murder.  Then, after his trial counsel failed to present any mitigation evidence during the penalty phase of his trial, he was sentenced to death.  In fact, counsel had not even investigated any possible grounds for mitigation. If counsel had made any effort, he would have found that Hodge, as a child, suffered what the Kentucky Supreme Court called a “most severe and unimaginable level of physical and mental abuse.” No. 2009–SC–000791–MR (Aug. 25, 2011), App. to Pet for Cert. 11.  The Commonwealth conceded that counsel’s performance was constitutionally deficient as a result.  Yet the court below concluded that Hodge would have been sentenced to death anyway because even if this evidence had been presented, it would not have “explained” his actions, and thus the jury would have arrived at the same result.  Ibid.  This was error. Mitigation evidence need not, and rarely could, “explai[n]” a heinous crime; rather, mitigation evidence allows a jury to make a reasoned moral decision whether the individual defendant deserves to be executed, or to be shown mercy instead.  The Kentucky Supreme Court’s error of law could well have led to an error in result.  I would grant the petition for certiorari, summarily vacate, and remand to allow the Kentucky Supreme Court to reconsider its decision under the proper standard.

December 3, 2012 at 10:32 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Some sentencing action in the SCOTUS order list:


There is no error of law. Read in context, the Kentucky Supreme Court's mention of the lack of connection between the mitigating evidence and the crime goes to the weight of the evidence, not whether it can be considered.

Posted by: Kent Scheidegger | Dec 3, 2012 8:08:39 PM

We have made clear for over 30 years, however, that mitiga¬tion does not play so limited a role.
In Lockett v. Ohio, 438 U. S. 586 (1978), we held that the sentencer in a capitalcase must be given a full opportunity to consider, as amitigating factor, “any aspect of a defendant’s character or record,” in addition to “any of the circumstances of the offense that the defendant proffers as a basis for a sen- tence less than death.” Id., at 604 (plurality opinion) (emphasis added). We emphasized the “need for treating each defendant in a capital case with that degree of re¬spect due the uniqueness of the individual.” Id., at 605. This rule “recognizes that ‘justice . . . requires . . . that there be taken into account the circumstances of the of¬fense together with the character and propensities of the offender,’” as part of deciding whether the defendant is to live or die. Eddings v. Oklahoma, 455 U. S. 104, 112 (1982) (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937)). And it ensures that “‘the sentence imposed at the penalty stage . . . reflect[s] a reasoned moral response to the defendant’s background, character, and crime.’” Abdul-Kabir v. Quarterman, 550 U. S. 233, 252 (2007) (quoting California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring)). Thus we have consistently rejected States’ attempts to limit as irrelevant evidence of a defendant’s background or character that he wishes to offer in mitigation. In Skipper v. South Carolina, 476 U. S. 1 (1986), for example, we heldthat the exclusion of evidence regarding the defendant’s good behavior in jail while awaiting trial deprived him of “his right to place before the sentencer relevant evidencein mitigation of punishment.” Id., at 4. We explained thatthe jury “could have drawn favorable inferences . . . re¬garding [the defendant’s] character and his probable future conduct.” Ibid. Although “any such inferenceswould not relate specifically to [the defendant’s] culpabil¬ity for the crime he committed, . . . such inferences would be ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death.’” Id., at 4–5 (quoting Lockett, 438 U. S., at 604 (plurality opinion)).Particularly instructive is Smith v. Texas, 543 U. S. 37 (2004) (per curiam). In Smith, the Texas courts withheld a mitigation instruction concerning the defendant’s back¬ground, on the ground that he had offered “no evidence of any link or nexus between his troubled childhood or hislimited mental abilities and this capital murder.” Ex parte Smith, 132 S. W. 3d 407, 414 (Tex. Crim. App. 2004). We rejected this “nexus” requirement as one we had “nevercountenanced,” and we reiterated that the only relevant question is whether the proposed mitigation evidencewould give a jury “a reason to impose a sentence morelenient than death.” 543 U. S., at 44–45.
The Kentucky Supreme Court’s opinion is plainly con¬trary to these precedents.

Posted by: Claudio GiustiI | Dec 4, 2012 3:01:39 PM

After all we have seen (Malvo, Nichols, etc.), I think it is pretty presumptuous for any court to find harmless error in a case where (a) there was basically no investigation/presentation of evidence at the original trial, and (b) the post-conviction presentation of mitigating evidence is substantial.

I can see if there was a decent presentation at trial, and the postconviction lawyers just did a better job, without uncovering whole new areas. But when there was nothing at trial *and* a lot to find, the process is too idiosyncratic for anyone to conclude with confidence that it wouldn't have made a difference.

Posted by: Anon | Dec 4, 2012 5:59:46 PM

Anon, the law doesn't require the assumption of an idiosyncratic decisionmaker.

Sotomatyor clowns herself again. Why am I not surprised? That she's willing to do so on behalf of a brutal killer speaks volumes about the warped moral compass of the wise Latina.

Posted by: federalist | Dec 4, 2012 10:53:56 PM

The argument is that this is not an "idiosyncratic decisionmaker," that there is actual reasonable merit here.

Instead of just addressing this fact via a legal argument, federalist chooses again to name call. This is somewhat counterproductive when arguing that such and such judge or justices are wrongly applying the law, which in loads of cases does help those who have committed heinous crimes. See, e.g., confrontation cases involving child molesters.

Posted by: Joe | Dec 5, 2012 12:45:12 PM

Nice try Joe. Anon cited an outlying jury verdict (Terry Nichols) to make the point that because you never know what a jury will do, there will usually be prejudice. All I was doing was pointing out that really isn't the law--putatively anyway.

As for the wise Latina, I was simply leveraging off Kent's post pointing out the, ahem, issues with Sotomayor's dissent.

Then you have a goofy riff into child molestors. Whatever. The bottom line is that the wise Latina put her hackery on display for all to see. Let's see you defend her . . . .

Posted by: federalist | Dec 5, 2012 11:45:25 PM

e allora ???????????????????????????
Ohio bill to require consideration of military service at sentencing

Posted by: Claudio GiustiI | Dec 7, 2012 6:51:55 AM

Clear Errors About the Death Penalty
NYT December 7, 2012
When the United States Supreme Court reinstated capital punishment in 1976, it said that the penalty could never be mandatory. Even if a jury finds a defendant guilty of a brutal murder, it still must weigh evidence about how to sentence him. Aggravating evidence concerns why a jury should impose a death sentence. Mitigating, or moderating, evidence concerns why it should not. That is the law of the land.
But it is not the law of the Kentucky Supreme Court. The U.S. Supreme Court decided this week not to review a ruling by that state court which upheld the 1986 death sentence of Benny Lee Hodge. Justice Sonia Sotomayor wrote that because “this is a capital case, and clear errors of law such as those here should be redressed,” she dissented from her court’s decision and laid out the Kentucky court’s errors.

Posted by: Claudio GiustiI | Dec 8, 2012 10:51:11 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB