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Aryan Brotherhood Decision

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In United States v. Mills, the Aryan Brotherhood case noted in the previous post, U.S. District Judge David Carter of the Central District of California held that the Confrontation Clause applies to the entire penalty phase in a federal capital case, not just the factors needed to make the defendant eligible for the death penalty. This decision conflicts with Judge Henry Hudson's opinion in United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005). If the district court split develops into a circuit split, which is likely, this dispute is headed for the Supreme Court. In my humble opinion, Jordan is correct.

The Mills opinion begins soundly enough. It notes that the Supreme Court decided in Williams v. New York, 337 U.S. 241 (1949) that capital sentencing proceedings need not follow the usual rules of evidence, but much has changed since Williams. The opinion further notes the Apprendi line of cases. These cases have applied the Sixth Amendment jury trial requirement to sentencing factors that raise the maximum punishment for which the defendant is eligible in the sentencer's discretion. This line was applied to capital cases in Ring v. Arizona, 536 U.S. 584 (2002). In the federal system, as in the Arizona system, at least one aggravating circumstance from a statutory list must be found before the defendant is eligible to be considered for the death penalty. The opinion concludes that Ring requires that the Confrontation Clause apply in the determination of eligibility. Up to this point, the opinion is consistent with Jordan.

However, Judge Carter criticizes Judge Hudson for not addressing the effects of Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), and it is at this point that Judge Carter himself goes off the rails. Blakely and Booker sharpened the distinction between facts which establish eligibility and facts which inform discretion within the eligible range, and Judge Carter gets it precisely backwards.

The eligibility/selection distinction is one the Supreme Court has been refining in capital cases for a long time. The Court has effectively required that every capital sentencing system have a two-part process. First, some additional factor beyond conviction of murder must be specified by law and found by the jury before the death penalty becomes an available option. In Texas, the additional factor comes in the definition of a higher degree of murder: capital murder. In California, the jury finds a "special circumstance" concurrently with the guilt verdict. In most states and the federal system, though, the jury finds an "aggravating circumstance" during the penalty phase of the proceeding. In all capital jurisdictions, this eligibility finding is followed by a discretionary decision on whether to actually sentence the defendant to death. That decision is informed by the defendant's mitigating evidence, and in many jurisdictions the jury may consider additional aggravating factors as well.

In Tuilaepa v. California, 512 U.S. 967 (1994), the high court clarified that factors used for eligibility and those used for selection serve different functions and need not meet the same requirements. Eligibility factors are like elements of a crime and must be defined with some degree of specificity, lest eligibility become a completely subjective judgment. Once eligibility has been determined, the sentencing decision is open to a much wider and more diffuse array of factors. Earlier this year, the Court drove the wedge in further in Brown v. Sanders. If the jury is erroneously instructed on an eligibility factor that is too vague to serve that function, the error is harmless for eligibility if another, proper factor is found, and it is harmless for selection if the jury could have considered the same facts under a broadly defined factor such as "the circumstances of the offense." In Sattazahn v. Pennsylvania, 537 U.S. 101 (2003), the plurality opinion indicates in Part III A that the eligibility/selection distinction extends to the Double Jeopardy Clause. A defendant who has once been held ineligible for the death penalty cannot be resentenced to death on a new trial, but a sentencer's discretionary decision not to sentence him to death carries no such preclusive force.

Returning now to Blakely, the Court distinguishes facts which are not subject to Sixth Amendment requirements from those that are in this way:

"[T]he facts do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail. In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury." 542 U.S., at 309.


This distinction fits perfectly with the distinction between eligibility factors and selection factors. If no eligibility factor is found true, the defendant is entitled to a sentence less than death. No such entitlement follows from the jury's failure to find any of the additional aggravating factors the government may proffer.

Booker continues the distinction between eligibility and selection in the noncapital sentencing arena. Rather than impose the requirements of jury trial and proof beyond a reasonable doubt on the facts that go into Sentencing Guidelines calculations, the Booker Court transformed those facts from eligibility facts into selection facts by making the Guidelines advisory rather than mandatory. But the Booker-reformed federal system is not a system of absolute discretion. It is a system of structured discretion in which sentences outside the Guidelines are usually reversed and those within the Guidelines are almost always affirmed. Booker therefore holds, in effect, that the Apprendi line does not apply to a system which structures discretion rather than eliminates it.

Judge Carter avoids the implication of these precedents by inventing a new construct he calls "constitutionally significant factfinding." In this view, the fact that Congress has imposed additional structure on the penalty decision for the defendant's benefit, beyond what the Constitution requires, transforms the nonstatutory aggravating factors from the kind of facts distinguished in Blakely into a new category to which all the guilt phase procedural protections apply. However, this "constitutionally significant facts" rationale fails to adequately distinguish federal capital sentencing from Booker-ized noncapital sentencing. The Guidelines-determining facts still structure and guide the noncapital sentence more, not less, than the nonstatutory aggravating factors in capital sentencing. Hence, they should be more, not less, "constitutionally significant," yet Booker holds that they are not subject to Apprendi.

Not only does he fail to distinguish Booker, but Judge Carter's argument is also distasteful as a "let no good deed go unpunished" argument. Congress had no constitutional obligation to require that additional aggravating factors be found expressly and unanimously by the jury upon proof beyond a reasonable doubt. It could have allowed each juror to consider any relevant facts that he or she found proven by a preponderance of the evidence. The Supreme Court has repeatedly held that Georgia's system of throwing the door open to unbridled discretion once eligibility is established is perfectly constitutional. See Zant v. Stephens, 462 U. S. 862, 875 (1983).

The Mills decision is erroneous. If the statute remains as it is, the error will eventually be corrected by a higher court, if not in this case then in another presenting the same issue. However, there is no need for the statute to remain as it is. The Apprendi line of cases has created a number of tensions in federal death penalty law, and Congress should act swiftly and decisively to remove them.

The most important change to Ring-proof the federal statute is simply to move the finding of eligibility circumstances into the guilt phase, as is done in California. All of the facts that the jury must find unanimously and beyond a reasonable doubt can be decided in a single proceeding. All of the evidence subject to the Confrontation Clause can be presented in a single proceeding.

For the penalty phase, now reduced to only the selection decision, the unnecessary restrictions cited by Judge Carter as reasons for invoking the Confrontation Clause should simply be repealed. Once the presumption of innocence has been rebutted beyond a reasonable doubt, there is no reason for the proceeding to be unbalanced in the defendant's favor. Since the defendant can have his evidence considered by each juror who individually finds it proved by a preponderance of the evidence, the government should have its evidence considered on the same basis.

3 Comments

The judge in United States v. Mills is David O. Carter, not Oliver Carter.

Thanks for the correction, Manly. I had copied the name from the AP story, but from the opinion I see you are correct.

Couldn't the defendant simply attempt to call witnesses under his constitutional right to have the government produce witnesses for his defense?

Also, is a defendant who stands convicted of capital murder an "accused"?

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