The U.S. Supreme Court today granted certiorari to revisit one of the worst decisions of its modern (post-1972) capital punishment era, Mills v. Maryland, 486 U.S. 367 (1988). Mills was one of two dubious decisions that essentially crippled Maryland's death penalty in the late 1980s.   The other one, Booth v. Maryland, 482 U.S. 496 (1987), was overruled in the 1991 decision of Payne v. Tennessee, 501 U.S. 808.

The Mills case involved a jury instruction on mitigating circumstances that had been drafted by a committee of the state bar, approved by the state high court, and written into the official rules. By a strained interpretation of the instruction, a bare majority of the Supreme Court decided that it might be interpreted to preclude consideration of a mitigating circumstance believed to be true by many but less than all of the jurors. By a further stretch, the high court perceived a danger that a jury might return a verdict of death even though all the jurors believed for different reasons that the defendant deserved a life sentence.

The Supreme Court held in Beard v. Banks, 542 U.S. 406 (2004), that Mills had created a new rule, not dictated by the precedents in force at the time. Back in 1988, the Maryland Court of Appeals had applied the decision retroactively, throwing out most of the existing death sentences then in force. We now know, too late, that was error.

In the case taken up today, Smith v. Spisak, No. 08-724, the Sixth Circuit applied the dubious Mills decision expansively. The State of Ohio claims this expansion violated the congressional command in the Antiterrorism and Effective Death Penalty Act of 1996 that state court decisions within the bounds of reasonable disagreement should stand. SCOTUSblog has the certiorari petition here.

The AEDPA point should be sufficient to reverse the Sixth and reinstate the well-deserved sentence of this triple murderer/Nazi.* The Court may also want to take the opportunity to narrow, if not overrule, Mills itself.