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Dangerously Sloppy Language in the Hurst v. Florida Opinion

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Update:  See the follow-up post, regarding an execution in Alabama which the Supreme Court allowed to go forward even though the murderer was making a Hurst claim.

Throughout the United States Supreme Court's modern capital punishment jurisprudence, it has clearly distinguished two separate determinations to be made in capital sentencing.  The difference is explained in, among many other cases Tuilaepa v. California, 512 U.S. 967, 970-971 (1994):

Our capital punishment cases under the Eighth Amendment address two different aspects of the capital decision-making process: the eligibility decision and the selection decision. To be eligible for the death penalty, the defendant must be convicted of a crime for which the death penalty is a proportionate punishment. Coker v. Georgia, 433 U. S. 584 (1977). To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one "aggravating circumstance" (or its equivalent) at either the guilt or penalty phase.
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We have imposed a separate requirement for the selection decision, where the sentencer determines whether a defendant eligible for the death penalty should in fact receive that sentence. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Different requirements apply to these two decisions.  Most pertinently here, Ring v. Arizona, 536 U.S. 584, 597-598, n. 4 (2002) very explicitly confines its jury trial holding to the eligibility decision, i.e., the finding of at least one aggravating circumstance, and not to the weighing or the ultimate penalty decision.

Did the Supreme Court in Hurst v. Florida throw away the distinction between these two decisions that it has so carefully constructed and explained over so many years?  Some people are claiming it did.  I find that inconceivable, particularly since just a week later the Court reasserted the distinction in Kansas v. Carr, an opinion joined by eight Justices, including six who joined the Hurst opinion.

Yet the people making that claim have some sloppy language in the Hurst opinion to back them up.
In Florida, as in many states, at least one aggravating circumstance must be found before the death penalty can be considered (the eligibility decision), and for an eligible murderer to actually be sentenced to death the aggravating circumstances must be found to outweigh the mitigating circumstances (the selection decision).  Refuting Florida's claim that the roles of the judge and jury in its system are distinguishable from those in the former Arizona system struck down in Ring, the Hurst opinion says in part III A:

The State fails to appreciate the central and singular role the judge plays under Florida law. As described above and by the Florida Supreme Court, the Florida sentencing statute does not make a defendant eligible for death until "findings by the court that such person shall be punished by death." Fla. Stat. §775.082(1) (emphasis added). The trial court alone must find "the facts . . . [t]hat sufficient aggravating circumstances exist" and"[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." §921.141(3); see Steele, 921 So. 2d, at 546. "[T]he jury's function under the Florida death penalty statute is advisory only." Spaziano v. State, 433 So. 2d 508, 512 (Fla. 1983). The State cannot now treat the advisory recommendation by the jury as the necessary factual finding that Ring requires.

Does the use of the word "eligible" in this paragraph in connection with the "outweigh" requirement extend the Ring rule beyond the "eligibility" stage involved in Ring itself?  Does it extend the concept of "eligibility" to include the weighing step, effectively wiping out the distinction that has been made at least as far back as Zant v. Stephens, 462 U.S. 862 (1983)?

No, it cannot, because this week's decision in Kansas v. Carr very clearly indicates the distinction between eligibility and selection is alive and well, and weighing is part of selection.

First, bear in mind that neither Ring nor Hurst is part of what Justice Scalia once aptly called the Court's "annually improvised Eighth Amendment, 'death is different' jurisprudence."  Instead, they are applications to capital sentencing of the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000), a noncapital case.  That case applied the Sixth Amendment and the Due Process Clause to require that a finding that makes a defendant eligible for a higher range of punishment must be made by a jury upon proof beyond a reasonable doubt.  Neither requirement applies to the sentencer's discretionary choice within the available range.  The jury trial right and the burden of proof are thus inseparably joined for this line of cases.

Hurst was mainly about jury trial, but Carr was about burden of proof.  In Carr, the opinion of the Court, in part II B, reasserted the eligibility v. selection distinction and noted that a burden of proof in the latter would make no sense and only confuse the jury. 

And of course the ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy--the quality of which, as we know, is not strained.  It would mean nothing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve it. 
This language cannot be reconciled with an assertion that the Apprendi-based rule of Ring and Hurst applies to the selection phase of capital sentencing or with an assertion that the "weighing" process is part of eligibility rather than selection.  Without either of those premises, there can be no credible argument that the weighing must be done by the jury rather than the judge.

In my opinion, the death penalty statutes of those states that have chosen to leave the final sentencing decision to the judge after the jury finds the aggravating circumstances are unaffected by Hurst.  If Florida wants to adopt such as system in response to Hurst, it is free to do so. 

What about the Florida inmates presently on death row who have Hurst claims?  In my opinion, it would be constitutional to give them a jury trial on the aggravating circumstances alone, and upon the finding of one such circumstance reinstate the original judgment without a new "weighing" process.

The Supreme Court does sometimes revise its opinions after issuance.  I hope the Court will fix that problematic paragraph in Hurst.

1 Comment

It is interesting to juxtapose the Court's haughtiness with its sloppiness.

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