In January, the U.S. Supreme Court decided in Hurst v. Florida that the Florida capital sentencing system did not comply with a series of cases beginning with Apprendi v. New Jersey (2000). Yesterday the Florida Supreme Court heard oral argument on remand in the Hurst case. Several people have asked me what should/will happen to the cases of the murderers presently on death row in Florida. "Should" is easier to answer than "will":
1. Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.
2. Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so. For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.
3. Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure.
1. Cases final on direct appeal (i.e., those where the Florida Supreme Court has affirmed the judgment in the initial appeal and the U.S. Supreme Court has denied the petition to take the case up or the defendant did not file one) should not be affected by Hurst.
2. Cases already tried and pending on appeal should be affirmed under the "harmless error" rule if it is clear beyond a reasonable doubt that the jury would have unanimously found at least one aggravating circumstance if they had been asked to do so. For example, if the jury convicted the defendant of robbery and murder and there is no question in the case that the murder was committed in the course of the robbery (an aggravating circumstance), that would be harmless error.
3. Cases where there is a Hurst error that does not meet the standard for harmless error should be retried as to penalty under the new statutory procedure.
Here is the longer explanation:
Apprendi and its progeny distinguish between (1) a sentencer's discretionary choice of sentence within a range set by the criminal sentencing statute or sentencing guidelines, and (2) a factual finding that changes the range within which that discretion may be exercised. In Apprendi itself the fact that a crime was racially motivated increased the maximum sentence. These kinds of "sentence enhancement" findings effectively create a higher degree of offense, and they must be found by the jury to have been proved beyond a reasonable doubt. A finding by a judge of proof by a preponderance of the evidence is not sufficient.
Later cases in the line extended Apprendi to the finding of at least one aggravating circumstance that most states require to make a case potentially capital (Ring v. Arizona (2002)), a finding in a state system of mandatory sentencing guidelines that increases the top of the range beyond that authorized by the crime alone (Blakely v. Washington (2004)), and a similar issue in the federal guidelines system (United States v. Booker (2005)).
In contrast to the "death is different" cases, where the Supreme Court invented constitutional restrictions for capital sentencing that do not apply to noncapital cases, Ring is a "death is the same" case. The Supreme Court applied the noncapital Apprendi rule and found the Arizona system did not conform to it, and it saw no reason to apply a different rule for capital cases, thus overruling its precedent rejecting the identical argument 12 years earlier, Walton v. Arizona (1990). Walton relied on Spaziano v. Florida (1984) and Hildwin v. Florida (1989), in which the Court rejected Sixth Amendment attacks on Florida's system. In Hurst, the high court overruled "Spaziano and Hildwin ... to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty."
1. In a pair of cases in the 1980s (Griffith v. Kentucky and Teague v. Lane), the Supreme Court established very different rules for retroactivity of new rules made through case law, depending on the stage of review the case was in. If the case of the person seeking to apply the new rule is still pending on direct appeal when the rule is made, the new rule applies, period. It is different for cases on collateral review, habeas corpus or an equivalent procedure. Rules of substantive law (e.g., the rule exempting intellectually disabled persons from the death penalty) also apply retroactively to cases on collateral review, but new rules of procedure do not. (In theory, there is an exception for new "watershed" procedural rules, but in 27 years the Supreme Court has never found one.)
Sometimes it is debatable whether a rule is actually "new," but Hurst falls into a category where there is no question. The Court had previously decided the precise question the other way and had to overrule those precedents to reach the result.
As noted above, Hurst is part of the Apprendi line of cases. Ring is also an Apprendi case, and in Schriro v. Summerlin (2004) the Supreme Court held that Ring was a rule of procedure, that is was not a "watershed" rule, and that it was not retroactive on habeas corpus. Summerlin is on point and controlling in federal courts. The Federal District Courts in Florida and the U.S. Court of Appeals for the Eleventh Circuit cannot apply Hurst on federal habeas corpus to overturn existing, final sentences. Indeed, the Supreme Court itself gave strong indication that it considers this an easy question when it let the State of Florida proceed with the execution of Jerry Correll after it took up the Hurst case. Correll's case had long since been final on direct appeal.
A state court or legislature can adopt a retroactivity rule more favorable to defendants if it wishes, however. It is therefore possible for the Florida Supreme Court to apply Hurst retroactively to all the final cases, but I doubt that it will.
2. While there was intially considerable question whether Apprendi-type errors were subject to "harmless error analysis," the Supreme Court decided that question in Washington v. Recuenco (2006). In that case, the jury found the defendant guilty of assault with a deadly weapon but did not (and was not asked to) specify whether the weapon was a firearm. During trial, it had not been disputed that the weapon in question was a handgun. The judge made the firearm finding and applied a sentence enhancement for use of a firearm. Apprendi and Blakely were decided while the case was pending on appeal, so the judge's failure to submit this issue to the jury was deemed "error," even though it conformed to the law at the time. However, the Supreme Court held that "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." That means harmless error analysis applies.
Recuenco is on point. It makes no difference that Hurst is a capital case because the underlying logic of Ring, on which Hurst is based, is that the Apprendi rule is the same in capital cases as in noncapital cases. Also, unlike the Teague retroactivity rule, Recuenco also held that state courts cannot go their own way on this. Whether a federal rule is of the type that allows harmless error analysis is a federal question, and the Supreme Court has jurisdiction to take up a state case ruling in the defendant's favor and reverse it.
3. If a case goes back for resentencing, should the defendant simply get a life sentence, or should there be a new penalty trial? If there is a new penalty trial, by what procedure should it be tried?
An argument that the defendant must receive a life sentence because application of a new procedural fix would be a forbidden ex post facto law collides head-on with the long-established Supreme Court precedent of Dobbert v. Florida (1977). Dobbert committed murder at a time when murder was a capital offense in Florida. In 1972, after the murder, the Supreme Court declared the existing death penalty procedure (unlimited discretion in the jury) unconstitutional. Then the Florida Legislature (along with the vast majority of states) enacted corrective legislation, and Dobbert was tried under that new law. No problem, said the U.S. Supreme Court. Hurst's lawyer tried to argue for a different result under the Florida Constitution and statutes, but he didn't seem to be making much headway.
So then we come to statutory interpretation. Given that the statute could apply to resentencing cases, does it?
The statute says, at the very end, "This act shall take effect upon becoming a law." Not much help there. The Attorney General argues that the deletion of language in an earlier draft of the bill making it prospective only implies that retroactivity was intended. The reaction from the justices was skeptical.
Generally speaking, rules that govern people's conduct -- rules of substantive law -- are applied as they existed at the time of the conduct. In criminal law, this is constitutionalized as the ex post facto rule. If X was legal at the time you did it, you can't be charged when X is subsequently outlawed. In civil cases, statutes are presumed not to have this kind of retroactive effect unless the legislature clearly specifies retroactivity.
Not so with rules of procedure. Cases are typically tried under the rules in effect at the time of trial. A person does not generally have a vested right to any particular procedure for determining his substantive rights.
In Landgraf v. USI Film Products (1994), the Supreme Court stated, "the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event."
The rule for interpretation of statutes that do not specify their retroactivity has much in common with the constitutional analysis of the Ex Post Facto Clause. Dobbert is binding precedent on the question of whether application of the new law would be constitutional (it would), but it is also important persuasive precedent on the question of whether the statute should be interpreted to apply to resentencing cases.
Murder in the course of a robbery was a capital offense at the time Timothy Hurst chose to stab and slash Cynthia Harrison to death while robbing the Popeye's restaurant where she worked. The procedure in place at the time has been thrown out due to the Supreme Court's inability to agree with itself from one year to the next what the Constitution forbids and what it requires. Hurst had no vested interest in the old procedure, and there is nothing unfair about applying the new one to determine, on the merits, what punishment he deserves for the crime he chose to commit. This is not "retroactive effect" within the meaning of Landgraf for much the same reasons it was not ex post facto in Dobbert.
The Florida Supreme Court should also be aware of the purpose of the law. The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements. Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not. Attributing such an intended result makes no sense given the purpose of the law.
Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve. Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.
The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves. Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary. Absent strong evidence the legislature intended this result, it should not be attributed to them.
The new act should apply to any cases remanded for resentencing.
Apprendi and its progeny distinguish between (1) a sentencer's discretionary choice of sentence within a range set by the criminal sentencing statute or sentencing guidelines, and (2) a factual finding that changes the range within which that discretion may be exercised. In Apprendi itself the fact that a crime was racially motivated increased the maximum sentence. These kinds of "sentence enhancement" findings effectively create a higher degree of offense, and they must be found by the jury to have been proved beyond a reasonable doubt. A finding by a judge of proof by a preponderance of the evidence is not sufficient.
Later cases in the line extended Apprendi to the finding of at least one aggravating circumstance that most states require to make a case potentially capital (Ring v. Arizona (2002)), a finding in a state system of mandatory sentencing guidelines that increases the top of the range beyond that authorized by the crime alone (Blakely v. Washington (2004)), and a similar issue in the federal guidelines system (United States v. Booker (2005)).
In contrast to the "death is different" cases, where the Supreme Court invented constitutional restrictions for capital sentencing that do not apply to noncapital cases, Ring is a "death is the same" case. The Supreme Court applied the noncapital Apprendi rule and found the Arizona system did not conform to it, and it saw no reason to apply a different rule for capital cases, thus overruling its precedent rejecting the identical argument 12 years earlier, Walton v. Arizona (1990). Walton relied on Spaziano v. Florida (1984) and Hildwin v. Florida (1989), in which the Court rejected Sixth Amendment attacks on Florida's system. In Hurst, the high court overruled "Spaziano and Hildwin ... to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty."
1. In a pair of cases in the 1980s (Griffith v. Kentucky and Teague v. Lane), the Supreme Court established very different rules for retroactivity of new rules made through case law, depending on the stage of review the case was in. If the case of the person seeking to apply the new rule is still pending on direct appeal when the rule is made, the new rule applies, period. It is different for cases on collateral review, habeas corpus or an equivalent procedure. Rules of substantive law (e.g., the rule exempting intellectually disabled persons from the death penalty) also apply retroactively to cases on collateral review, but new rules of procedure do not. (In theory, there is an exception for new "watershed" procedural rules, but in 27 years the Supreme Court has never found one.)
Sometimes it is debatable whether a rule is actually "new," but Hurst falls into a category where there is no question. The Court had previously decided the precise question the other way and had to overrule those precedents to reach the result.
As noted above, Hurst is part of the Apprendi line of cases. Ring is also an Apprendi case, and in Schriro v. Summerlin (2004) the Supreme Court held that Ring was a rule of procedure, that is was not a "watershed" rule, and that it was not retroactive on habeas corpus. Summerlin is on point and controlling in federal courts. The Federal District Courts in Florida and the U.S. Court of Appeals for the Eleventh Circuit cannot apply Hurst on federal habeas corpus to overturn existing, final sentences. Indeed, the Supreme Court itself gave strong indication that it considers this an easy question when it let the State of Florida proceed with the execution of Jerry Correll after it took up the Hurst case. Correll's case had long since been final on direct appeal.
A state court or legislature can adopt a retroactivity rule more favorable to defendants if it wishes, however. It is therefore possible for the Florida Supreme Court to apply Hurst retroactively to all the final cases, but I doubt that it will.
2. While there was intially considerable question whether Apprendi-type errors were subject to "harmless error analysis," the Supreme Court decided that question in Washington v. Recuenco (2006). In that case, the jury found the defendant guilty of assault with a deadly weapon but did not (and was not asked to) specify whether the weapon was a firearm. During trial, it had not been disputed that the weapon in question was a handgun. The judge made the firearm finding and applied a sentence enhancement for use of a firearm. Apprendi and Blakely were decided while the case was pending on appeal, so the judge's failure to submit this issue to the jury was deemed "error," even though it conformed to the law at the time. However, the Supreme Court held that "[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." That means harmless error analysis applies.
Recuenco is on point. It makes no difference that Hurst is a capital case because the underlying logic of Ring, on which Hurst is based, is that the Apprendi rule is the same in capital cases as in noncapital cases. Also, unlike the Teague retroactivity rule, Recuenco also held that state courts cannot go their own way on this. Whether a federal rule is of the type that allows harmless error analysis is a federal question, and the Supreme Court has jurisdiction to take up a state case ruling in the defendant's favor and reverse it.
3. If a case goes back for resentencing, should the defendant simply get a life sentence, or should there be a new penalty trial? If there is a new penalty trial, by what procedure should it be tried?
An argument that the defendant must receive a life sentence because application of a new procedural fix would be a forbidden ex post facto law collides head-on with the long-established Supreme Court precedent of Dobbert v. Florida (1977). Dobbert committed murder at a time when murder was a capital offense in Florida. In 1972, after the murder, the Supreme Court declared the existing death penalty procedure (unlimited discretion in the jury) unconstitutional. Then the Florida Legislature (along with the vast majority of states) enacted corrective legislation, and Dobbert was tried under that new law. No problem, said the U.S. Supreme Court. Hurst's lawyer tried to argue for a different result under the Florida Constitution and statutes, but he didn't seem to be making much headway.
So then we come to statutory interpretation. Given that the statute could apply to resentencing cases, does it?
The statute says, at the very end, "This act shall take effect upon becoming a law." Not much help there. The Attorney General argues that the deletion of language in an earlier draft of the bill making it prospective only implies that retroactivity was intended. The reaction from the justices was skeptical.
Generally speaking, rules that govern people's conduct -- rules of substantive law -- are applied as they existed at the time of the conduct. In criminal law, this is constitutionalized as the ex post facto rule. If X was legal at the time you did it, you can't be charged when X is subsequently outlawed. In civil cases, statutes are presumed not to have this kind of retroactive effect unless the legislature clearly specifies retroactivity.
Not so with rules of procedure. Cases are typically tried under the rules in effect at the time of trial. A person does not generally have a vested right to any particular procedure for determining his substantive rights.
In Landgraf v. USI Film Products (1994), the Supreme Court stated, "the court must ask whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event."
The rule for interpretation of statutes that do not specify their retroactivity has much in common with the constitutional analysis of the Ex Post Facto Clause. Dobbert is binding precedent on the question of whether application of the new law would be constitutional (it would), but it is also important persuasive precedent on the question of whether the statute should be interpreted to apply to resentencing cases.
Murder in the course of a robbery was a capital offense at the time Timothy Hurst chose to stab and slash Cynthia Harrison to death while robbing the Popeye's restaurant where she worked. The procedure in place at the time has been thrown out due to the Supreme Court's inability to agree with itself from one year to the next what the Constitution forbids and what it requires. Hurst had no vested interest in the old procedure, and there is nothing unfair about applying the new one to determine, on the merits, what punishment he deserves for the crime he chose to commit. This is not "retroactive effect" within the meaning of Landgraf for much the same reasons it was not ex post facto in Dobbert.
The Florida Supreme Court should also be aware of the purpose of the law. The Florida Legislature acted swiftly after Hurst to enact a new procedure meeting the newly minted constitutional requirements. Why? Because it considers enforcement of the death penalty important. Why, then, would the legislature want a whole class of sentences wiped out? It would not. Attributing such an intended result makes no sense given the purpose of the law.
Finally, there is the matter of arbitrariness. Arbitrariness necessarily works both ways. Just as people should not arbitrarily be sentenced to punishment, neither should they arbitrarily be spared a punishment they deserve. Arbitrary sparing of some is necessarily arbitrary infliction on those not spared.
The whole point of our complex jurisprudence of capital sentencing is to make the sentence fit what the murderer deserves. Commuting a wide swath of sentences based on an accident of timing without any regard for just deserts is arbitrary. Absent strong evidence the legislature intended this result, it should not be attributed to them.
The new act should apply to any cases remanded for resentencing.
Not surprisingly, the usual suspects are asking the Florida SC to invalidate every single death sentence and replace each with a life sentence. An amicus brief in support of this is signed by three former Fla SC justices, whom we thought were thankfully gone forever. Alas, they have returned. Two of the current crop of justices seem to think the brand new statute is also unconstitutional, based on 8A concerns, because the statute only requires a single aggravating circumstance for CP. Cruel & Unusual...read it.
https://www.washingtonpost.com/news/post-nation/wp/2016/05/04/florida-has-nearly-400-death-row-inmates-will-the-state-overturn-all-of-their-death-sentences/
In other news, a circuit judge has just sentenced a man to death for the murder of a St Lucie County (FL) police sergeant. This no doubt will be back ad nauseum, for the next 30 years. The man was convicted under the old statute.
http://www.tcpalm.com/news/crime/st-lucie-county/sgt-gary-morales-killer-tisdale-headed-to-death-row-in-raiford-3114f7d8-98c9-51e5-e053-0100007f1e5f--377648801.html
JCC
Kent,
Please forgive my ignorance as I am not a lawyer.
From Hurst I cannot understand this:
\\\ “under Apprendi, a judge may impose any
sentence authorized “on the basis of the facts . . .
admitted by the defendant,” 542 U. S., at 303.
Florida alleges that Hurst’s counsel admitted the
existence of a robbery, but Blakely applied Apprendi
to facts admitted in a guilty plea … In any event,
Hurst never admitted to either aggravating
circumstance alleged by the State. Pp. 7–8.” ///
Why on earth does someone have to admit to being guilty
of an aggravating circumstance?
What bother is it if one admits to anything? Was he not convicted of it?
~ Adamakis
Not to worry, Adamakis. A lot of lawyers are scratching their heads over this opinion also.
What is at issue in the Apprendi line of cases are laws that change the range of allowable punishments for a crime based on a finding of fact that is in addition to the elements of the offense.
A conviction of murder in the first degree in Florida establishes that the defendant unlawfully killed a human being plus one of the following:
1. Premeditation; or
2. Killing while engaged in one of a long list of felonies; or
3. Killing related to certain drug crimes.
See Florida Statutes § 782.04(1)(a).
A conviction of murder by itself therefore does not necessarily establish any of the "aggravating circumstances" needed to make the case eligible for the death penalty. (This narrowing of the eligible class is required by the Supreme Court's post-1972 death penalty jurisprudence.)
Sometimes the guilt verdict can establish an aggravating circumstance, though. If the verdict goes beyond just saying guilty under § 782.04(1)(a) and instead specifies robbery felony-murder, § 782.04(1)(a)2.d., that would establish the aggravating circumstance in §921.141(5)(d).
In addition to a finding by a jury, an element of an offense or an aggravating circumstance can be established by admission. Sometimes it is in the defendant's interest to admit something rather than have the prosecution prove it to the jury. Admitting a prior crime, for example, may make the difference between telling the jury the bare fact of conviction versus having all the sordid details laid out before them.
But statements by defense counsel in the course of a trial don't function as this kind of admission, the Court says.