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January 23, 2017

SCOTUS denies cert on handful of Alabama cases raising Hurst and other issues

This most recent Relist Watch posting by John Elwood at SCOTUSblog noted that the Supreme Court had relisted a few times a few cases from Alabama raising various challenges to how that state rolls its tide toward death sentences.  But this new Supreme Court order list, released this morning, has all of the relisted Alabama capital cases now on a certiorari denied list.

Interestingly, it appears that a few method-of-execution cases that were previously relisted are not on the latest cert denied list.  My guess would be that this is because someone is working on a dissent from denial of cert, but you never know just what SCOTUS is up to.

January 23, 2017 at 10:06 AM | Permalink


I think practitioners on both sides would have liked the Supreme Court to have taken one of these cases. There are two big issues in these cases (and some of the law in capital cases might seep into the developing case law on juvenile lwop).

First, many states have a multi-step guided decision process for juries. While post-Hurst, it is clear that the first step (typically called "statutory aggravating circumstances) must be proved by the State beyond a reasonable doubt and found by the jury. The remaining steps tend to be "value judgments." They tend to have the jury find whether the aggregate of the aggravating circumstances merit the death penalty or whether there is sufficient mitigating evidence to justify a lesser-penalty. Since Ring (an effort that has redoubled since Hurst), the defense bar has argued that -- in setting up the system in this way with specific factors for the jury to find -- states have made these additional factors part of the "death eligibility" triggering a need for the State to prove these factors beyond a reasonable doubt and for the jury to find these factors before the death penalty can be imposed (also triggering a requirement that the jury be instructed on that burden of proof). The State has argued that these additional factors or part of the "death selection" process that need not be decided by a jury. As such, in some states, the instructions do not expressly state what the burden of proof is on these factors or place the burden of proving mitigating circumstances on the defense.

Second, while most states require the jury if these additional factors are part of "death selection" rather than death eligibility, some states eliminate the jury role at this stage (either entirely or by allowing a judge to impose a death sentence if the jury hangs) or make the jury role advisory. The primary argument at this time against these options is based on Ring and Hurst, but there are other more general due process issues raised.

Putting aside the benefit that capital litigators would get from having these two issues resolved, there is the potential, as noted above, for some of these issues to creep into juvenile lwop. Some, but not all, states have responded to Miller and Montgomery by enacting statutory schemes for juvenile lwop that bear some resemblance to their capital statutes -- specific aggravating circumstances, other factors that must be weighed in making the final decision. A broad definition of Apprendi-Hurst-Ring elements would create a right to jury consideration of these issues in juvenile lwop cases. A narrow definition would probably limit a jury to having to find the juvenile statutory aggravating circumstances but would allow judge sentencing after the jury makes that finding.

Posted by: tmm | Jan 23, 2017 10:49:46 AM

tmm, it is nice to see someone talk about "death eligibility factors' and "death selection" factors, a distinction first coined, to my knowledge by Justice Scalia. ( Brown v Sanders) Once a single death eligibility factor is found by a jury beyond a reasonable doubt, the Sixth Amendment has been satisfied and the rest of the selection ags can be found by a judge on a lesser standard than beyond a reasonable doubt.

I believe the reason the Alabama cert petition was denied was because the Alabama Supreme Court got it right. I feel pretty certain that the Florida response to Hurst, which requires a jury to decide if ags outweigh mits will get to the Supreme Court, and be reversed.


Posted by: bruce cunningham | Jan 23, 2017 11:29:58 PM

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