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March 6, 2017

Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?

The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here).  Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:

[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.  This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....

A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts."  (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.

March 6, 2017 at 11:49 AM | Permalink


Once again, the Supreme Court appears to be unaware. The sole racial bias is the discounting of the victimization of black crime victims. Is there any duty to treat crime victims equally? Kill a white, death. Kill a black, a few years, get out on parole. Do black crime victims have any right to Equal Protection, the clause in the constitution? The biggest problem of victims? They do not generate lawyer employment. Murderers are most often judgment proof.

One way victims can generate lawyer jobs is to assert a duty of local government to individuals. Then agents of local government should be held accountable in torts for failing to perform at their standard of due care.

Posted by: David Behar | Mar 6, 2017 1:50:46 PM

Clearly this is a new rule under Teague. Thus, it should not impact existing sentences (unless the claim is pending on direct review).

In future cases, I am expecting to see a lot of litigation about what qualifies as a clear statement of racial animus. I am also expecting to see claims based on the late discovery of such animus (thereby potential expanding the time to file a federal habeas petition.)

Posted by: tmm | Mar 7, 2017 8:26:08 PM

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