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January 16, 2016
"The End of the Death Penalty Isn't Near"
The title of this post is the title of this recent column by Noah Feldman for Bloomberg View, which is actually mostly focused on various votes by various Justices in this past week's ruling in Hurst v. Florida. Here are excerpts:
The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again. The 8-1 decision was joined by Justices Antonin Scalia and Clarence Thomas, who have no intention of ever ruling death sentences unconstitutional as a general matter. The reason these archconservatives held Florida’s death-penalty system unconstitutional was highly specific. The state gave a judge, not a jury, final authority to decide facts that would determine a capital sentence.
This arrangement violated a principle that Scalia and Thomas adopted in 2000 as part of their goal to strike down federal sentencing guidelines. According to that principle, any fact that’s necessary to increase a defendant’s punishment must be submitted to the jury for proof beyond a reasonable doubt. The Florida structure didn’t satisfy that requirement, the court held. So Scalia and Thomas had no choice but to join the opinion....
In case you’re wondering if Scalia and Thomas are somehow softening, proof to the contrary may be gleaned from the fact that last week, the court refused to stay the execution of a Florida death row inmate. Ordinarily, if the court knew that a forthcoming opinion would save a defendant’s life, it would issue a stay — a decision that requires five justices.
The court didn’t give a reason for refusing the stay. But the defendant, Oscar Ray Bolin Jr., had waived the jury’s part of the process at his 2001 trial and chosen to go straight to the judge for sentencing. Thus, the court could’ve concluded that he wouldn’t have benefited from the constitutional rule requiring submission of facts to the jury. You’re entitled to waive your constitutional rights, and five of the justices must’ve thought that Bolin would’ve done so even if he’d known he had the right to demand a jury finding.
And what about Breyer? He still hasn’t given up on the constitutionality of the sentencing guidelines. He concurred separately in the Florida case to explain that he still doesn’t think that facts enhancing punishment must be submitted to a jury. He gave a different reason for striking down the sentence, namely that the death penalty in particular must be decided by a jury, not a judge.
The upshot is that the Florida case wasn’t about the death penalty for Scalia and Thomas — it was about the old fight over the sentencing guidelines, which Breyer hasn’t forgotten either.
Prior related postson Hurst:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure impact of Hurst
January 16, 2016 at 02:41 PM | Permalink
Comments
The Supremacy has repeatedly argued that the Supreme Court abolished the death penalty. it then saw its big mistake when thousands of lawyers lost their jobs. It re-instituted it, at a rate that makes it worthless, at a pace that is ridiculous to the observer, unless...Unless one understands the priority of the Supreme Court.
They will continue on this course for the foreseeable future. Tiny nominal number of executions, but massive nit picking lawyer procedures for decades. Why? Because it does not even care about criminals, as it might seem to the observer.
It cares, most of all, about generating worthless government make jobs for lawyers.
Posted by: Supremacy Claus | Jan 16, 2016 4:03:59 PM
Doug, I respectfully disagree with Professor Feldman's view of the foundational Sixth Amendment principle underlying Apprendi/Ring. Here are the three sentences which I think illustrate the conceptual flaw in his premise.
"The State gave a judge, not a jury, final authority to decide facts that would determine a capital sentence."
"According to that principle, any fact that's necessary to increase a defendant's punishment must be submitted to the jury for proof beyond a reasonable doubt."
"Thomas never said so explicitly but it seems probable that he liked the idea of an empowered jury casting doubt on laws it didn't like."
I believe the Sixth Amendment prohibits a bench trial for a greater offense following a jury trial for a lesser offense, regardless of whether the sentence imposed exceeds or is within the potential range of allowable punishments allowed by the jury verdict standing alone. (i.e. that "Blakely maximum)
Rather than Prof Feldman's focus on the punishment received, I think the critical issue is the potential punishment to which the defendant is exposed by the judicially found fact.
For example, suppose a defendant is charged with common law robbery, which in N.C. is robbery without a deadly weapon. Suppose the maximum punishment for that is up five years.
Armed Robbery is robbery with a deadly weapon, which carries up to a max of ten years.
Suppose the jury convicts the defendant of common law robbery. After taking the jury verdict, the judge says "I believe the defendant used a gun, so, madame clerk, I am going to convict him of Armed Robbery, and sentence him to four years in prison."
Finding the fact of use of a gun did not increase the defendant's punishment above the level allowed by the jury verdict for common law robbery, yet, in my opinion, the submitted scenario still violates the Sixth Amendment.
The second area of disagreement with Prof Feldman is what was motivating Justice Thomas. I don't believe it was that he was fond of "the idea of an empowered jury casting doubt on laws it didn't like."
Rather, what motivated Justice Thomas was his understanding of the Sixth Amendment principle that, unless waived by the def, only a jury can convict a citizen of a crime. That is the way it was at the founding, so that is the way it is now.
That is why Thomas wrote in the first paragraph of his Apprendi concurrence that the issue presented is "what is a crime?." The Court has held many times now that a core crime plus a fact which increases the punishment to which a def is exposed is a new, greater crime. Post Apprendi, we have only aggravated crimes, not aggravated sentences.
Thank you for posting this article, even though I disagree with it. Professor Feldman, in my opinion, has made the same, common mistake of thinking that Apprendi is about sentencing, rather than about the definition of a crime.
bruce
Posted by: bruce cunningham | Jan 16, 2016 9:38:33 PM
We need mandatory death penalty guidelines. We need to impeach the Justices of the Supreme Court for their lawless decisions, in insurrection against our constitution. We need to crush the current lawyer criminal cult enterprise and eradicate their hierarchy.
We need to pierce the legal immunity of tort deasors like Bruce Cunningham, and to hold him fully accountable for the foreseeable harm his clients will cause others. That foreseeability is more reliable than the orbits of planets. Does the sun rise in the East, his clients will kill again.
Posted by: Supremacy Claus | Jan 17, 2016 12:25:13 AM
S.C. will you never go away? Your incoherent drivel is so tiresome.
Posted by: Dave | Jan 17, 2016 12:49:06 AM
S.C. will you never go away? Your incoherent drivel is so tiresome.
Posted by: Dave | Jan 17, 2016 12:49:06 AM
S.C.’s comments document that we remain in a Republic •
Were he all that bad „ NSA would be on his back ☺
Posted by: Docile Jim Brady „ the Nemo Me ☺ Impune Lacessit guy in Oregon ‼ | Jan 17, 2016 2:24:32 AM
"The U.S. Supreme Court struck down Florida’s death penalty Tuesday, but if you think this is a harbinger of the end of capital punishment, think again."
Well, yes, since Scalia et. al. joined & such people have no desire to end capital punishment, surely as a constitutional matter.
Posted by: Joe | Jan 17, 2016 11:53:02 AM
Dave. Will the tiresome lawyer and his drivel never go away?
Read Bruce's comment. Now call my comment drivel again.
Posted by: Supremacy Claus | Jan 17, 2016 3:55:08 PM
Dave. To answer my own question. The lawyer is never going away as long as we pay this rent seeker a $trillion a year to screw over our nation.
Posted by: Supremacy Claus | Jan 18, 2016 1:23:10 AM
