Warren Richey has this article on the case for tomorrow's Christian Science Monitor.
That holding is crystal clear that the limitation of mitigating factors to a specific statutory list is constitutional. Nothing in the opinion says or implies that consideration of other factors is constitutionally required. Yet the Supreme Court held exactly that two years later in Lockett v. Ohio, 438 U.S. 586, for no good reason. Thompson's case and many others had to be retried.
Justice Breyer would hold the state responsible for this.
In particular, the delay was partly caused by the sentencing judge's failure to allow the presentation and jury consideration of nonstatutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden, see Hitchcock v. Dugger, 481 U. S. 393, 398-399 (1987). As a result of this error, the Florida Supreme Court remanded for resentencing. See Thompson v. Dugger, 515 So. 2d 173 (1987).I disagree. From the CSM article:
Much of the problem is of the Supreme Court's own making, argues Kent Scheidegger, a death penalty expert at the Criminal Justice Legal Foundation in Sacramento, Calif. He says that Breyer concludes in his statement that flawed trial procedures are responsible for the delays in the Thompson case, not Thompson himself.
But Breyer is telling only part of the story, Mr. Scheidegger says. "The first trial was defective only because after the trial, the Supreme Court invented a new rule [for capital cases] out of whole cloth," Scheidegger says. "His trial was valid under the rules in effect at the time."
Scheidegger adds: "One of the big problems with a lot of these old cases is that for a number of years, the Supreme Court was making it up as they went along, so there had to be multiple trials of the same case. That certainly isn't the state's fault."
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