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January 12, 2016

A few (too) quick thoughts on the post-Hurst hydra

Download (1)As reported in this post, the Supreme Court via Hurst finally clarified today what most sensible folks long argued, namely that Florida's death penalty procedures have Sixth Amendment problems in light of the Supreme Court's 2002 ruling striking down Arizona's similar judge-dependent system in Ring v. Arizona.  Kent Schneidegger in this post at Crime & Consequences highlights why this was not really a surprise and why what's next is the interesting issue now to follow:

Most of the states with similar systems went with jury verdicts on both the aggravating circumstance and the final sentencing decision, although Nebraska kept a hybrid system where the jury finds the circumstance and three judges find the sentence.

The Florida Legislature foolishly stuck with its system, hoping that the courts would find it distinguishable from the Arizona system struck down in Ring.  I tried to tell them that was insane.  They didn't listen.  Today the U.S. Supreme Court decided 7-1-1 in Hurst v. Florida that the Florida system does indeed violate Ring.

How many of the existing judgments can be salvaged?  The Supreme Court said it left harmless error analysis to the state courts.  In many cases, a jury verdict on a concurrent or prior crime can establish an aggravating circumstance.  Today's decision will be fully retroactive for cases on direct appeal, but its application to cases on collateral review is uncertain.

The first thing the Florida Legislature needs to do is fix its system.  And do it right this time.

Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be  held responsible for the capital mess Florida now finds itself in.  Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House).  I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair.

As for the mess that Hurst will create, I am coining the term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will grow and grow again in Florida's courts (both state and federal).  Whether the Sixth Amendment can be deemed harmless in some cases on direct appeal and whether/how Hurst will be applied retroactively in collateral cases — e.g., is Hurst a new rule or just an application of Ring? — is sure to engender some interesting mythology-like discussions in state and federal courts in the months ahead.

Also, not to be overlooked as we take stock of the post-Hurst world, is whether any other states' capital systems might be subject to another round of procedural attack now.  Alabama comes to mind because some of its nearly 200 death sentences were imposed via jury override by sentencing judges, though I am not sure if any of these are formally based on the judicial fact-finding found unconstitutional in Ring and Hurst.  Similarly, it seems likely that creative capital defense lawyers will find creative ways to attack other death sentences in other jurisdictions based on something in Hurst.

Prior related post:

January 12, 2016 at 12:08 PM | Permalink


"Before turning to what Hurst may mean for the roughly 400 persons now on death row in Florida, I must first note that the two Floridians currently running to be US Prez should both be held responsible for the capital mess Florida now finds itself in. Jeb Bush was Gov of Florida when Ring was decided, and Marco Rubio was in the state legislature (and was not long thereafter to become Speaker of the Florida House). I hope that anyone troubled by the mess that Hurst creates for Florida's criminal justice system will direct some of their frustration to (and ask some hard questions of) this Sunshine State pair."

Are you kidding? I mean seriously---Florida was supposed to undo a statutory scheme that the Supreme Court specifically approved?

Posted by: federalist | Jan 12, 2016 12:12:21 PM

That is what it seems Kent wisely urged after Ring.

Posted by: Doug B. | Jan 12, 2016 12:37:07 PM

Hurst is simply the US Sup Ct saying that it meant what it said. A core crime plus an aggravating factor which increases the potential punishment above the Blakely statutory maximum is a new, greater crime.

The states are trying their best to duck that basic principle.

Concerning harmlessness, remember Recuenco. The US Sup Ct said in Recuenco v Washington that the failure of the jury to determine the existence of the aggravator was harmless and they sent it back to Washington. Then the Washington Supreme Court took a different approach and said that since the aggravator wasn't alleged in the indictment, as a matter of state law, the trial court had no jurisdiction and reversed. One of the few examples I can think of where a state supreme court "reversed" the U S Supreme Court.

why don't the states just admit that what they have been doing too long is unconstitutional?


Posted by: bruce cunningham | Jan 12, 2016 12:53:44 PM

NC doesn't require an aggravating factor to be alleged in a bill of indictment. I think Hurst makes clear the ag which exposes the def to death is an element of capital murder. So, I think cases where the indictment was defective are vulnerable.

Defense lawyers have been arguing this for years, but the prosecutors didn't listen.

Posted by: bruce cunningham | Jan 12, 2016 1:07:52 PM

Can you discuss a bit about what, if any, implications today's ruling has for judicial override in Delaware and Alabama? Is this the death knell for it everywhere, or is Florida different in some way such that Delaware's and Alabama's judicial override in capital cases may remain in part or in whole? Thank you!

Posted by: Kirsten Tynan | Jan 12, 2016 2:17:04 PM

The Justices of the Supreme Court should be impeached for their decisions, and not just for any collateral corruption. This decision is a rent seeking decision to generate lawyer jobs. It is both lawless and a form of collateral corruption.

Posted by: Supremacy Claus | Jan 12, 2016 2:41:58 PM

They explicitly overruled Spaziano. I would imagine that means that if the jury chose life imprisonment, they were persuaded that the mitigating evidence was stronger. Any increase in punishment by the trial judge violates Ring.

Posted by: DaveP | Jan 12, 2016 2:58:05 PM

It always amazes me how the law changes as well as the Justices with it. Blackmun wrote the majority opinion in Spaziano, overruled 30 years later.

Posted by: DaveP | Jan 12, 2016 3:04:08 PM

Dave says, "It always amazes me how the law changes as well as the Justices with it."

Agreed, and what happened is that over the years the law had gotten so far away from the founder's idea of who decides whether a person committed a crime that the Sixth Amendment had lost all of its content. Or as Thomas says, the basic issue in Apprendi is "What is a crime?"

The law had gotten irrational about what juries did and what judges did and Apprendi has brought rationality back. It also, simply put, is a reaffirmation of Marbury v Madison, the bedrock case of American jurisprudence.

This notion of Marbury redux is best seen in Scalia's classic statement in Ring, he doesn't care if the legislature says something is an element, a sentencing factor or Mary Jane--if the finding of it exposes a def to a greater potential punishment it has to be determined by a jury.

So, Dave, you're right. The law changed, reaching the extreme in Penn v McMillan, and then it has swung back to what the founding fathers envisaged for a free country.


Posted by: bruce cunningham | Jan 12, 2016 3:49:46 PM

please give us an example of harmless error the FSC would find on cases vacated and remanded. I would think the aggravators that were there at the beginning would have weight on this. Prior felonies, killing of a law enforcement officer, etc.

SCOTUS let Florida execute Jerry Correll a few months ago despite his request for a stay pending Hurst. Breyer and Sotomayor dissented. It would seem that retroactivity is a no because of Summerlin?

Posted by: DaveP | Jan 12, 2016 4:13:36 PM

123D solves the problem of unindicted aggravation.

Posted by: Supremacy Claus | Jan 12, 2016 4:17:55 PM

was one of the aggravators a prior felony? If so, it seems to me that would be Apprendi exempt, because Apprendi didn't overrule Almendarez Torres.

I thought the two ags were murder during a robbery and heinous and cruel killing. I don't think heinous killing can pass vagueness muster if it is used as a sole aggravator.

Recuenco v Washington says that a judicial finding of an ag can be harmless error. But, a wrinkle could be if Florida requires a grand jury to return a bill of indictment with all the elements alleged and there are no aggravators in the indictment. Then the trial court didn't have jurisdiction, which can be raised at any time.


Posted by: bruce cunningham | Jan 12, 2016 4:31:11 PM

In Hurst, there were no prior felonies.

In other cases you believe that prior felonies or other aggravators established ahead of time are Apprendi exempt and would sustain the death sentences on remand?

Posted by: DaveP | Jan 12, 2016 4:35:46 PM

Yes, the law changes -- the Constitution has broad principles in it that experience had led to changing views and the growth of new doctrine that leads in new directions. Brown v. Bd. was "amazing" to some too -- John Davis argued at the time separate but equal was a time honored principle that was around so long that it obtained a permanence. Thirty years? That's more than a generation, if a generation is seen as twenty years.

I'm not going to worry too much about "the founder's ideas" here, even when there was any one "idea" since we have changed a lot since then. It is true that applying said "ideas" to the degree we can seriously be thought to be doing that would be a lot difference today given how much has changed. For instance, the breadth of our domestic police force alone changed so much since then, one reason for changes in interrogation rules.

Posted by: Joe | Jan 12, 2016 4:41:36 PM

Dave, you are asking very complicated questions. Here are a few basic responses related to general Apprendi/Ring principles. Granted, these are only my opinions, although Doug will affirm that I am an Apprendi fanatic. (I was so convinced Blakely would result in N.C. sentencing law going out the window, I closed the office and took the staff to D.C. to watch oral argument. It was worth the trip to hear Scalia say that in his opinion the issue presented was whether the Sixth Amendment or the Washington sentencing law was unconstitutional)

1. A prior conviction is exempt from the Apprendi Rule, and a jury does not have to find an aggravating factor of something like "the def has been convicted of a violent felony".

2. There is only one Apprendi/Ring/Blakely fact per case, even though multiple aggravators are submitted to the jury. The reason is because it takes only one "fact" to increase the crime from what Scalia calls "murder simpliciter" to "aggravated" or "capital murder." In other words, the finding of a second or third aggravator doesn't increase the punishment again to something worse than death and doesn't have to be found by a jury.

3. Once the jury finds beyond a reasonable doubt one ag, the judge can find the rest. See the Arizona case of State v Martinez.

4. Once the jury finds one ag, the judge can decide if death is the appropriate sentence. See Scalia's statement in Ring.

5. Apprendi/Ring/Blakely has nothing to do with sentencing. See Scalia's statement to that effect in Ring. In other words, post Apprendi there are no aggravated sentences, there are only aggravated crimes.

6. Doug has an article on the Offense characteristic/offender characteristic distinction. I believe that the Apprendi fact must be an offense characteristic, like shooting a policeman, rather than an offender characteristic, like "def was on pretrial release for another crime". I'm not sure if Doug agrees with me.

7. Since Alleyene/Hurst make clear that the one ag which increases the crime is an element of that new crime, I believe it has to pass vagueness muster for an element, rather than a sentencing factor. See Justice Kennedy's comment about that distinction in US v Johnson on page 26 of the transcript of the oral argument.

8. So, take Hurst. I believe the ag of murder committed in course of robbery is an offense characteristic and, since I think the ag of especially cruel is too vague to be an element, the Florida jury must find if the killing occurred during course of robbery.

9. Hurst himself may win the battle and lose the war, since the court said it is up to the state court to determine, under Recuenco v Washington, if the constitutional error of a judge finding the ag is harmless, meaning the state could prove beyond a reasonable doubt that if submitted to a jury, it would have found the ag.

10. the above comment must be taken in the context of whether the robbery ag was included in an indictment. If Florida law requires a grand jury indictment to convey jurisdiction on the trial court and the ag was not in the indictment, the court didn't have jurisdiction to try Hurst for capital murder. That is a state law question. Hurtado v California.

Dave, all this is very simple and very complicated at the same time. Basically, only juries convict people of crime pursuant to the Sixth Amendment. Once the jury convicts someone guilty of capital murder, the rest can be left to the judge. Again, see Scalia's comment on that in Ring.

I've written two law review articles, one on Apprendi and one on Ring and would be happy to send them to you if you are interested.

Again, these are my opinions, but it seems to me the Court's commitment to Apprendi has strengthened over time, not weakened.


Posted by: bruce cunningham | Jan 12, 2016 6:16:21 PM

Bruce please do that

Posted by: DaveP | Jan 12, 2016 6:33:40 PM

Dave, please send me your email address, to
[email protected]

thanks for the questions and comments


Posted by: bruce cunningham | Jan 12, 2016 10:49:00 PM

Bruce is happy. $Millions will be wasted on lawyer thieving, thanks to this horrible rent seeking Supreme Court.

Posted by: Supremacy Claus | Jan 12, 2016 11:30:48 PM

Bruce. How many people have your clients you saved from the death penalty killed in prison? You are responsible for every prison murder they committed, as if you shanked them yourself.

Posted by: Supremacy Claus | Jan 12, 2016 11:32:11 PM

I am not sure that the "right to jury cases" like Hurst translate into a requirement that aggravators be included in the charging document. The right to notice in the charging document flows from the due process clause, not the right to jury clause. I think there is probably a right to notice before trial of the alleged statutory aggravators, but that States can allow that notice to be filed separately from the charging document. (There is some advantages to both sides in allowing a brief time period between the filing of the charges and the prosecution having to make a decision about whether to pursue the death penalty.)

I think Hurst makes clear what was implicit in Ring -- statutory aggravating factors must be found by the jury. I am not sure, however, that Hurst necessarily requires the jury to find that the death penalty is the appropriate penalty or precludes a judicial override of a recommendation for life if the jury finds the existence of at least one statutory aggravating circumstance.

Posted by: tmm | Jan 13, 2016 10:08:45 AM

From Harrington v. Richter: "Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment).

It would seem to me that sentences under a state statutory scheme that was approved by SCOTUS would not be a "extreme malfunction" allowing habeas relief, particularly where, as here, the criminals arguably benefited from the process.

The stridency and dismissiveness of Sotomayor's opinion is remarkable, and it is a poor reflection on her and the Court as a whole.

Posted by: federalist | Jan 13, 2016 10:26:39 AM

tmm, I believe there is a big difference between due process notice, Vermont v Hodgson, and jurisdiction of a court to hear a case.

There is no federal right to a grand jury indictment because the indictment clause has not been applied to the states. But if a state, like NC, requires a Grand Jury to return a bill of indictment, then I believe at least ONE aggravator must be in the indictment.

No, Ring did not require all aggravators to be found by a jury, just one which can serve as an element of capital murder.

Only Justice Breyer believes the Constitution requires a jury to decide the sentence in a capital case. And he bases that on the Eighth Amendment, not the Sixth.


Posted by: bruce cunningham | Jan 13, 2016 2:17:24 PM

I don't know why or how Patty Hurst keeps rearing her ugly rear.

Posted by: Beldar From Remulak | Jan 14, 2016 2:09:30 PM

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